SB 438: Juveniles: legal guardianship: successor guardian.
- Session Year: 2017-2018
- House: Senate
- Latest Version Date: 2017-09-26
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 the temporary and permanent placement of a dependent child. Whenever a court orders a hearing to terminate parental rights to, or to establish legal guardianship of, a dependent child to be held, existing law requires the court to 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 and requires this assessment to include, among other things, a preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent or legal guardian, as specified. Existing law authorizes the court under specified circumstances to hold a hearing to determine whether parental rights should be permanently terminated, and requires the court, after reviewing the assessment described above, to make findings and orders in a specified order of preference regarding the permanent placement of the child, including appointment of a relative or nonrelative legal guardian. If the court finds that legal guardianship is the appropriate permanent plan, existing law requires the court to appoint the legal guardian and issue letters of guardianship. Existing law requires the court, prior to the appointment of a guardian for the child, to read and consider the assessment described above.
This bill would authorize the assessment of a legal guardian described above to also include the naming of a prospective successor guardian if one is identified. The bill, in the event of the incapacity or death of an appointed guardian, would authorize the named successor guardian to be assessed and appointed pursuant to the existing procedures that govern the appointment of a legal guardian.
This bill would incorporate additional changes to Section 366.26 of the Welfare and Institutions Code proposed by AB 976 to be operative only if this bill and AB 976 are enacted and this bill is enacted last.
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 the temporary and permanent placement of a dependent child. Whenever a court orders a hearing to terminate parental rights to, or to establish legal guardianship of, a dependent child to be held, existing law requires the court to 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 and requires this assessment to include, among other things, a preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent or legal guardian, as specified. Existing law authorizes the court under specified circumstances to hold a hearing to determine whether parental rights should be permanently terminated, and requires the court, after reviewing the assessment described above, to make findings and orders in a specified order of preference regarding the permanent placement of the child, including appointment of a relative or nonrelative legal guardian. If the court finds that legal guardianship is the appropriate permanent plan, existing law requires the court to appoint the legal guardian and issue letters of guardianship. Existing law requires the court, prior to the appointment of a guardian for the child, to read and consider the assessment described above.
This bill would authorize the assessment of a legal guardian described above to also include the naming of a prospective successor guardian if one is identified. The bill, in the event of the incapacity or death of an appointed guardian, would authorize the named successor guardian to be assessed and appointed pursuant to the existing procedures that govern the appointment of a legal guardian.
This bill would incorporate additional changes to Section 366.26 of the Welfare and Institutions Code proposed by AB 976 to be operative only if this bill and AB 976 are enacted and this bill is enacted last.
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 the temporary and permanent placement of a dependent child. Whenever a court orders a hearing to terminate parental rights to, or to establish legal guardianship of, a dependent child to be held, existing law requires the court to 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 and requires this assessment to include, among other things, a preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent or legal guardian, as specified. Existing law authorizes the court under specified circumstances to hold a hearing to determine whether parental rights should be permanently terminated, and requires the court, after reviewing the assessment described above, to make findings and orders in a specified order of preference regarding the permanent placement of the child, including appointment of a relative or nonrelative legal guardian. If the court finds that legal guardianship is the appropriate permanent plan, existing law requires the court to appoint the legal guardian and issue letters of guardianship. Existing law requires the court, prior to the appointment of a guardian for the child, to read and consider the assessment described above.
This bill would authorize the assessment of a legal guardian described above to also include the naming of a prospective successor guardian if one is identified. The bill, in the event of the incapacity or death of an appointed guardian, would authorize the named successor guardian to be assessed and appointed pursuant to the existing procedures that govern the appointment of a legal guardian.
This bill would incorporate additional changes to Section 366.26 of the Welfare and Institutions Code proposed by AB 976 to be operative only if this bill and AB 976 are enacted and this bill is enacted last.
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 and permanent placement of a dependent child. Existing law prescribes various hearings, including specified review hearings, and other procedures for these purposes. Whenever a court orders a hearing to terminate parental rights to, or to establish legal guardianship of, a dependent child to be held, existing law requires the court to 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 and requires this assessment to include, among other things, a preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent or legal guardian, as specified.This bill would authorize this preliminary assessment of a legal guardian to include the development of a plan for a successor guardian in the case of the incapacity or death of the guardian. The bill would authorize the court, in the event of the incapacity or death of an appointed guardian, to appoint an individual identified in the assessment as a successor guardian pursuant to the existing procedures that govern the appointment of a legal guardian.If the court finds that a child comes within the jurisdiction of the juvenile court and the parent has advised the court that the parent is not interested in family maintenance or reunifications services, existing law authorizes the juvenile court to order a legal guardianship, appoint a legal guardian, and issue letters of guardianship, in addition to or in lieu of adjudicating the child a dependent child of the court, if the court determines that a guardianship is in the best interest of the child, provided that the parent and the child agree to the guardianship, as specified. Existing law prohibits the court from appointing a legal guardian until a specified assessment is read and considered by the court.This bill would authorize the court to consider, at this hearing, any plan for a successor guardian submitted to the court. The bill would authorize the court, in the event of the incapacity or death of an appointed guardian, to appoint an individual identified in the assessment as a successor guardian pursuant to the existing procedures that govern the appointment of a legal guardian.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 and permanent placement of a dependent child. Existing law prescribes various hearings, including specified review hearings, and other procedures for these purposes. Whenever a court orders a hearing to terminate parental rights to, or to establish legal guardianship of, a dependent child to be held, existing law requires the court to 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 and requires this assessment to include, among other things, a preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent or legal guardian, as specified.
This bill would authorize this preliminary assessment of a legal guardian to include the development of a plan for a successor guardian in the case of the incapacity or death of the guardian. The bill would authorize the court, in the event of the incapacity or death of an appointed guardian, to appoint an individual identified in the assessment as a successor guardian pursuant to the existing procedures that govern the appointment of a legal guardian.
If the court finds that a child comes within the jurisdiction of the juvenile court and the parent has advised the court that the parent is not interested in family maintenance or reunifications services, existing law authorizes the juvenile court to order a legal guardianship, appoint a legal guardian, and issue letters of guardianship, in addition to or in lieu of adjudicating the child a dependent child of the court, if the court determines that a guardianship is in the best interest of the child, provided that the parent and the child agree to the guardianship, as specified. Existing law prohibits the court from appointing a legal guardian until a specified assessment is read and considered by the court.
This bill would authorize the court to consider, at this hearing, any plan for a successor guardian submitted to the court. The bill would authorize the court, in the event of the incapacity or death of an appointed guardian, to appoint an individual identified in the assessment as a successor guardian pursuant to the existing procedures that govern the appointment of a legal guardian.
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 and permanent placement of a dependent child. Existing law prescribes various hearings, including specified review hearings, and other procedures for these purposes. Whenever a court orders a hearing to terminate parental rights to, or to establish legal guardianship of, a dependent child to be held, existing law requires the court to 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 and requires this assessment to include, among other things, a preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent or legal guardian, as specified.
This bill would authorize this preliminary assessment of a legal guardian to include the development of a plan for a successor guardian in the case of incapacity or death of the guardian.
If the court finds that a child comes within the jurisdiction of the juvenile court and the parent has advised the court that the parent is not interested in family maintenance or reunifications services, existing law authorizes the juvenile court to order a legal guardianship, appoint a legal guardian, and issue letters of guardianship, in addition to or in lieu of adjudicating the child a dependent child of the court, if the court determines that a guardianship is in the best interest of the child, provided that the parent and the child agree to the guardianship, as specified. Existing law prohibits the court from appointing a legal guardian until a specified assessment is read and considered by the court.
This bill would authorize the court to consider, at this hearing, any plan for a successor guardian submitted to the court.
(a)This section applies to children who are adjudged dependent children of the juvenile court pursuant to subdivision (d) of Section 360. The procedures specified in this section are the exclusive procedures for conducting these hearings. The procedures in Part 2 (commencing with Section 3020) of Division 8 of the Family Code are not applicable to these proceedings. Section 8616.5 of the Family Code is applicable and available to all dependent children meeting the requirements of that section, if the postadoption contact agreement has been entered into voluntarily. For children who are adjudged dependent children of the juvenile court pursuant to subdivision (d) of Section 360, this section, and Sections 8604, 8605, 8606, and 8700 of the Family Code and Chapter 5 (commencing with Section 7660) of Part 3 of Division 12 of the Family Code specify the exclusive procedures for permanently terminating parental rights with regard to, or establishing legal guardianship of, the child while the child is a dependent child of the juvenile court.
(b)At the hearing, which shall be held in juvenile court for all children who are dependents of the juvenile court, the court, in order to provide stable, permanent homes for these children, shall review the report as specified in Section 361.5, 366.21, 366.22, or 366.25, shall indicate that the court has read and considered it, shall receive other evidence that the parties may present, and shall make findings and orders in the following order of preference:
(1)Terminate the rights of the parent or parents and order that the child be placed for adoption and, upon the filing of a petition for adoption in the juvenile court, order that a hearing be set. The court shall proceed with the adoption after the appellate rights of the natural parents have been exhausted.
(2)Order, without termination of parental rights, the plan of tribal customary adoption, as described in Section 366.24, through tribal custom, traditions, or law of the Indian childs tribe, and upon the court affording the tribal customary adoption order full faith and credit at the continued selection and implementation hearing, order that a hearing be set pursuant to paragraph (2) of subdivision (e).
(3)Appoint a relative or relatives with whom the child is currently residing as legal guardian or guardians for the child, and order that letters of guardianship issue.
(4)On making a finding under paragraph (3) of subdivision (c), identify adoption or tribal customary adoption as the permanent placement goal and order that efforts be made to locate an appropriate adoptive family for the child within a period not to exceed 180 days.
(5)Appoint a nonrelative legal guardian for the child and order that letters of guardianship issue.
(6)Order that the child be permanently placed with a fit and willing relative, subject to the periodic review of the juvenile court under Section 366.3.
(7)Order that the child remain in foster care, subject to the conditions described in paragraph (4) of subdivision (c) and the periodic review of the juvenile court under Section 366.3.
In choosing among the alternatives in this subdivision, the court shall proceed pursuant to subdivision (c).
(c)(1)If the court determines, based on the assessment provided as ordered under subdivision (i) of Section 366.21, subdivision (b) of Section 366.22, or subdivision (b) of Section 366.25, and any other relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. The fact that the child is not yet placed in a preadoptive home nor with a relative or foster family who is prepared to adopt the child, shall not constitute a basis for the court to conclude that it is not likely the child will be adopted. A finding under subdivision (b) or paragraph (1) of subdivision (e) of Section 361.5 that reunification services shall not be offered, under subdivision (e) of Section 366.21 that the whereabouts of a parent have been unknown for six months or that the parent has failed to visit or contact the child for six months, or that the parent has been convicted of a felony indicating parental unfitness, or, under Section 366.21 or 366.22, that the court has continued to remove the child from the custody of the parent or guardian and has terminated reunification services, shall constitute a sufficient basis for termination of parental rights. Under these circumstances, the court shall terminate parental rights unless either of the following applies:
(A)The child is living with a relative who is unable or unwilling to adopt the child because of circumstances that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment through legal guardianship, and the removal of the child from the custody of his or her relative would be detrimental to the emotional well-being of the child. For purposes of an Indian child, relative shall include an extended family member, as defined in the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1903(2)).
(B)The court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances:
(i)The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.
(ii)A child 12 years of age or older objects to termination of parental rights.
(iii)The child is placed in a residential treatment facility, adoption is unlikely or undesirable, and continuation of parental rights will not prevent finding the child a permanent family placement if the parents cannot resume custody when residential care is no longer needed.
(iv)The child is living with a foster parent or Indian custodian who is unable or unwilling to adopt the child because of exceptional circumstances, that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment and the removal of the child from the physical custody of his or her foster parent or Indian custodian would be detrimental to the emotional well-being of the child. This clause does not apply to any child who is either (I) under six years of age or (II) a member of a sibling group where at least one child is under six years of age and the siblings are, or should be, permanently placed together.
(v)There would be substantial interference with a childs sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption.
(vi)The child is an Indian child and there is a compelling reason for determining that termination of parental rights would not be in the best interest of the child, including, but not limited to:
(I)Termination of parental rights would substantially interfere with the childs connection to his or her tribal community or the childs tribal membership rights.
(II)The childs tribe has identified guardianship, foster care with a fit and willing relative, tribal customary adoption, or another planned permanent living arrangement for the child.
(III)The child is a nonminor dependent, and the nonminor and the nonminors tribe have identified tribal customary adoption for the nonminor.
(C)For purposes of subparagraph (B), in the case of tribal customary adoptions, Section 366.24 shall apply.
(D)If the court finds that termination of parental rights would be detrimental to the child pursuant to clause (i), (ii), (iii), (iv), (v), or (vi), it shall state its reasons in writing or on the record.
(2)The court shall not terminate parental rights if:
(A)At each hearing at which the court was required to consider reasonable efforts or services, the court has found that reasonable efforts were not made or that reasonable services were not offered or provided.
(B)In the case of an Indian child:
(i)At the hearing terminating parental rights, the court has found that active efforts were not made as required in Section 361.7.
(ii)The court does not make a determination at the hearing terminating parental rights, supported by evidence beyond a reasonable doubt, including testimony of one or more qualified expert witnesses as defined in Section 224.6, that the continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child.
(iii)The court has ordered tribal customary adoption pursuant to Section 366.24.
(3)If the court finds that termination of parental rights would not be detrimental to the child pursuant to paragraph (1) and that the child has a probability for adoption but is difficult to place for adoption and there is no identified or available prospective adoptive parent, the court may identify adoption as the permanent placement goal and, without terminating parental rights, order that efforts be made to locate an appropriate adoptive family for the child, within the state or out of the state, within a period not to exceed 180 days. During this 180-day period, the public agency responsible for seeking adoptive parents for each child shall, to the extent possible, ask each child who is 10 years of age or older to identify any individuals, other than the childs siblings, who are important to the child, in order to identify potential adoptive parents. The public agency may ask any other child to provide that information, as appropriate. During the 180-day period, the public agency shall, to the extent possible, contact other private and public adoption agencies regarding the availability of the child for adoption. During the 180-day period, the public agency shall conduct the search for adoptive parents in the same manner as prescribed for children in Sections 8708 and 8709 of the Family Code. At the expiration of this period, another hearing shall be held and the court shall proceed pursuant to paragraph (1), (2), (3), (5), or (6) of subdivision (b). For purposes of this section, a child may only be found to be difficult to place for adoption if there is no identified or available prospective adoptive parent for the child because of the childs membership in a sibling group, or the presence of a diagnosed medical, physical, or mental handicap, or the child is seven years of age or older.
(4)(A)If the court finds that adoption of the child or termination of parental rights is not in the best interest of the child, because one of the conditions in clause (i), (ii), (iii), (iv), (v), or (vi) of subparagraph (B) of paragraph (1) or in paragraph (2) applies, the court shall order that the present caretakers or other appropriate persons shall become legal guardians of the child, or, in the case of an Indian child, consider a tribal customary adoption pursuant to Section 366.24. Legal guardianship shall be considered before continuing the child in foster care under any other permanent plan, if it is in the best interests of the child and if a suitable guardian can be found. If the child continues in foster care, the court shall make factual findings identifying any barriers to achieving adoption, tribal customary adoption in the case of an Indian child, legal guardianship, or placement with a fit and willing relative as of the date of the hearing. A child who is 10 years of age or older, shall be asked to identify any individuals, other than the childs siblings, who are important to the child, in order to identify potential guardians or, in the case of an Indian child, prospective tribal customary adoptive parents. The agency may ask any other child to provide that information, as appropriate.
(B)(i)If the child is living with an approved relative who is willing and capable of providing a stable and permanent environment, but not willing to become a legal guardian as of the hearing date, the court shall order a permanent plan of placement with a fit and willing relative, and the child shall not be removed from the home if the court finds the removal would be seriously detrimental to the emotional well-being of the child because the child has substantial psychological ties to the relative caretaker.
(ii)If the child is living with a nonrelative caregiver who is willing and capable of providing a stable and permanent environment, but not willing to become a legal guardian as of the hearing date, the court shall order that the child remain in foster care with a permanent plan of return home, adoption, legal guardianship, or placement with a fit and willing relative, as appropriate. If the child is 16 years of age or older, or a nonminor dependent, and no other permanent plan is appropriate at the time of the hearing, the court may order another planned permanent living arrangement, as described in paragraph (2) of subdivision (i) of Section 16501. Regardless of the age of the child, the child shall not be removed from the home if the court finds the removal would be seriously detrimental to the emotional well-being of the child because the child has substantial psychological ties to the caregiver.
(iii)If the child is living in a group home or, on or after January 1, 2017, a short-term residential therapeutic program, the court shall order that the child remain in foster care with a permanent plan of return home, adoption, tribal customary adoption in the case of an Indian child, legal guardianship, or placement with a fit and willing relative, as appropriate. If the child is 16 years of age or older, or a nonminor dependent, and no other permanent plan is appropriate at the time of the hearing, the court may order another planned permanent living arrangement, as described in paragraph (2) of subdivision (i) of Section 16501.
(C)The court shall also make an order for visitation with the parents or guardians unless the court finds by a preponderance of the evidence that the visitation would be detrimental to the physical or emotional well-being of the child.
(5)If the court finds that the child should not be placed for adoption, that legal guardianship shall not be established, that placement with a fit and willing relative is not appropriate as of the hearing date, and that there are no suitable foster parents except certified family homes or resource families of a foster family agency available to provide the child with a stable and permanent environment, the court may order the care, custody, and control of the child transferred from the county welfare department to a licensed foster family agency. The court shall consider the written recommendation of the county welfare director regarding the suitability of the transfer. The transfer shall be subject to further court orders.
The licensed foster family agency shall place the child in a suitable licensed or certified family home that has been certified by the agency as meeting licensing standards or with a resource family approved by the agency. The licensed foster family agency shall be responsible for supporting the child and providing appropriate services to the child, including those services ordered by the court. Responsibility for the support of the child shall not, in and of itself, create liability on the part of the foster family agency to third persons injured by the child. Those children whose care, custody, and control are transferred to a foster family agency shall not be eligible for foster care maintenance payments or child welfare services, except for emergency response services pursuant to Section 16504.
(d)The proceeding for the appointment of a guardian for a child who is a dependent of the juvenile court shall be conducted in the juvenile court. If the court finds pursuant to this section that legal guardianship is the appropriate permanent plan, it shall appoint the legal guardian and issue letters of guardianship. The assessment prepared pursuant to subdivision (g) of Section 361.5, subdivision (i) of Section 366.21, subdivision (c) of Section 366.22, and subdivision (b) of Section 366.25 shall be read and considered by the court prior to the appointment, and this shall be reflected in the minutes of the court. The assessment may also include the naming of a prospective successor guardian, if one is identified. In the event of the incapacity or death of the appointed guardian, the named successor guardian may be assessed and appointed pursuant to this section. The person preparing the assessment may be called and examined by any party to the proceeding.
(e)(1)The proceeding for the adoption of a child who is a dependent of the juvenile court shall be conducted in the juvenile court if the court finds pursuant to this section that adoption is the appropriate permanent plan and the petition for adoption is filed in the juvenile court. Upon the filing of a petition for adoption, the juvenile court shall order that an adoption hearing be set. The court shall proceed with the adoption after the appellate rights of the natural parents have been exhausted. The full report required by Section 8715 of the Family Code shall be read and considered by the court prior to the adoption and this shall be reflected in the minutes of the court. The person preparing the report may be called and examined by any party to the proceeding. It is the intent of the Legislature, pursuant to this subdivision, to give potential adoptive parents the option of filing in the juvenile court the petition for the adoption of a child who is a dependent of the juvenile court. Nothing in this section is intended to prevent the filing of a petition for adoption in any other court as permitted by law, instead of in the juvenile court.
(2)In the case of an Indian child, if the Indian childs tribe has elected a permanent plan of tribal customary adoption, the court, upon receiving the tribal customary adoption order will afford the tribal customary adoption order full faith and credit to the same extent that the court would afford full faith and credit to the public acts, records, judicial proceedings, and judgments of any other entity. Upon a determination that the tribal customary adoption order may be afforded full faith and credit, consistent with Section 224.5, the court shall thereafter order a hearing to finalize the adoption be set upon the filing of the adoption petition. The prospective tribal customary adoptive parents and the child who is the subject of the tribal customary adoption petition shall appear before the court for the finalization hearing. The court shall thereafter issue an order of adoption pursuant to Section 366.24.
(3)If a child who is the subject of a finalized tribal customary adoption shows evidence of a developmental disability or mental illness as a result of conditions existing before the tribal customary adoption to the extent that the child cannot be relinquished to a licensed adoption agency on the grounds that the child is considered unadoptable, and of which condition the tribal customary adoptive parent or parents had no knowledge or notice before the entry of the tribal customary adoption order, a petition setting forth those facts may be filed by the tribal customary adoptive parent or parents with the juvenile court that granted the tribal customary adoption petition. If these facts are proved to the satisfaction of the juvenile court, it may make an order setting aside the tribal customary adoption order. The set-aside petition shall be filed within five years of the issuance of the tribal customary adoption order. The court clerk shall immediately notify the childs tribe and the department in Sacramento of the petition within 60 days after the notice of filing of the petition. The department shall file a full report with the court and shall appear before the court for the purpose of representing the child. Whenever a final decree of tribal customary adoption has been vacated or set aside, the child shall be returned to the custody of the county in which the proceeding for tribal customary adoption was finalized. The biological parent or parents of the child may petition for return of custody. The disposition of the child after the court has entered an order to set aside a tribal customary adoption shall include consultation with the childs tribe.
(f)At the beginning of any proceeding pursuant to this section, if the child or the parents are not being represented by previously retained or appointed counsel, the court shall proceed as follows:
(1)In accordance with subdivision (c) of Section 317, if a child before the court is without counsel, the court shall appoint counsel unless the court finds that the child would not benefit from the appointment of counsel. The court shall state on the record its reasons for that finding.
(2)If a parent appears without counsel and is unable to afford counsel, the court shall appoint counsel for the parent, unless this representation is knowingly and intelligently waived. The same counsel shall not be appointed to represent both the child and his or her parent. The public defender or private counsel may be appointed as counsel for the parent.
(3)Private counsel appointed under this section shall receive a reasonable sum for compensation and expenses, the amount of which shall be determined by the court. The amount shall be paid by the real parties in interest, other than the child, in any proportions the court deems just. However, if the court finds that any of the real parties in interest are unable to afford counsel, the amount shall be paid out of the general fund of the county.
(g)The court may continue the proceeding for a period of time not to exceed 30 days as necessary to appoint counsel, and to enable counsel to become acquainted with the case.
(h)(1)At all proceedings under this section, the court shall consider the wishes of the child and shall act in the best interests of the child.
(2)In accordance with Section 349, the child shall be present in court if the child or the childs counsel so requests or the court so orders. If the child is 10 years of age or older and is not present at a hearing held pursuant to this section, the court shall determine whether the minor was properly notified of his or her right to attend the hearing and inquire as to the reason why the child is not present.
(3)(A)The testimony of the child may be taken in chambers and outside the presence of the childs parent or parents, if the childs parent or parents are represented by counsel, the counsel is present, and any of the following circumstances exist:
(i)The court determines that testimony in chambers is necessary to ensure truthful testimony.
(ii)The child is likely to be intimidated by a formal courtroom setting.
(iii)The child is afraid to testify in front of his or her parent or parents.
(B)After testimony in chambers, the parent or parents of the child may elect to have the court reporter read back the testimony or have the testimony summarized by counsel for the parent or parents.
(C)The testimony of a child also may be taken in chambers and outside the presence of the guardian or guardians of a child under the circumstances specified in this subdivision.
(i)(1)Any order of the court permanently terminating parental rights under this section shall be conclusive and binding upon the child, upon the parent or parents and, upon all other persons who have been served with citation by publication or otherwise as provided in this chapter. After making the order, the juvenile court shall have no power to set aside, change, or modify it, except as provided in paragraph (2), but nothing in this section shall be construed to limit the right to appeal the order.
(2)A tribal customary adoption order evidencing that the Indian child has been the subject of a tribal customary adoption shall be afforded full faith and credit and shall have the same force and effect as an order of adoption authorized by this section. The rights and obligations of the parties as to the matters determined by the Indian childs tribe shall be binding on all parties. A court shall not order compliance with the order absent a finding that the party seeking the enforcement participated, or attempted to participate, in good faith, in family mediation services of the court or dispute resolution through the tribe regarding the conflict, prior to the filing of the enforcement action.
(3)A child who has not been adopted after the passage of at least three years from the date the court terminated parental rights and for whom the court has determined that adoption is no longer the permanent plan may petition the juvenile court to reinstate parental rights pursuant to the procedure prescribed by Section 388. The child may file the petition prior to the expiration of this three-year period if the State Department of Social Services, county adoption agency, or licensed adoption agency that is responsible for custody and supervision of the child as described in subdivision (j) and the child stipulate that the child is no longer likely to be adopted. A child over 12 years of age shall sign the petition in the absence of a showing of good cause as to why the child could not do so. If it appears that the best interests of the child may be promoted by reinstatement of parental rights, the court shall order that a hearing be held and shall give prior notice, or cause prior notice to be given, to the social worker or probation officer and to the childs attorney of record, or, if there is no attorney of record for the child, to the child, and the childs tribe, if applicable, by means prescribed by subdivision (c) of Section 297. The court shall order the child or the social worker or probation officer to give prior notice of the hearing to the childs former parent or parents whose parental rights were terminated in the manner prescribed by subdivision (f) of Section 294 where the recommendation is adoption. The juvenile court shall grant the petition if it finds by clear and convincing evidence that the child is no longer likely to be adopted and that reinstatement of parental rights is in the childs best interest. If the court reinstates parental rights over a child who is under 12 years of age and for whom the new permanent plan will not be reunification with a parent or legal guardian, the court shall specify the factual basis for its findings that it is in the best interest of the child to reinstate parental rights. This subdivision is intended to be retroactive and applies to any child who is under the jurisdiction of the juvenile court at the time of the hearing regardless of the date parental rights were terminated.
(j)If the court, by order or judgment, declares the child free from the custody and control of both parents, or one parent if the other does not have custody and control, or declares the child eligible for tribal customary adoption, the court shall at the same time order the child referred to the State Department of Social Services, county adoption agency, or licensed adoption agency for adoptive placement by the agency. However, except in the case of a tribal customary adoption where there is no termination of parental rights, a petition for adoption may not be granted until the appellate rights of the natural parents have been exhausted. The State Department of Social Services, county adoption agency, or licensed adoption agency shall be responsible for the custody and supervision of the child and shall be entitled to the exclusive care and control of the child at all times until a petition for adoption or tribal customary adoption is granted, except as specified in subdivision (n). With the consent of the agency, the court may appoint a guardian of the child, who shall serve until the child is adopted.
(k)Notwithstanding any other law, the application of any person who, as a relative caretaker or foster parent, has cared for a dependent child for whom the court has approved a permanent plan for adoption, or who has been freed for adoption, shall be given preference with respect to that child over all other applications for adoptive placement if the agency making the placement determines that the child has substantial emotional ties to the relative caretaker or foster parent and removal from the relative caretaker or foster parent would be seriously detrimental to the childs emotional well-being.
As used in this subdivision, preference means that the application shall be processed and, if satisfactory, the family study shall be completed before the processing of the application of any other person for the adoptive placement of the child.
(l)(1)An order by the court that a hearing pursuant to this section be held is not appealable at any time unless all of the following apply:
(A)A petition for extraordinary writ review was filed in a timely manner.
(B)The petition substantively addressed the specific issues to be challenged and supported that challenge by an adequate record.
(C)The petition for extraordinary writ review was summarily denied or otherwise not decided on the merits.
(2)Failure to file a petition for extraordinary writ review within the period specified by rule, to substantively address the specific issues challenged, or to support that challenge by an adequate record shall preclude subsequent review by appeal of the findings and orders made pursuant to this section.
(3)The Judicial Council shall adopt rules of court, effective January 1, 1995, to ensure all of the following:
(A)A trial court, after issuance of an order directing a hearing pursuant to this section be held, shall advise all parties of the requirement of filing a petition for extraordinary writ review as set forth in this subdivision in order to preserve any right to appeal in these issues. This notice shall be made orally to a party if the party is present at the time of the making of the order or by first-class mail by the clerk of the court to the last known address of a party not present at the time of the making of the order.
(B)The prompt transmittal of the records from the trial court to the appellate court.
(C)That adequate time requirements for counsel and court personnel exist to implement the objective of this subdivision.
(D)That the parent or guardian, or their trial counsel or other counsel, is charged with the responsibility of filing a petition for extraordinary writ relief pursuant to this subdivision.
(4)The intent of this subdivision is to do both of the following:
(A)Make every reasonable attempt to achieve a substantive and meritorious review by the appellate court within the time specified in Sections 366.21, 366.22, and 366.25 for holding a hearing pursuant to this section.
(B)Encourage the appellate court to determine all writ petitions filed pursuant to this subdivision on their merits.
(5)This subdivision shall only apply to cases in which an order to set a hearing pursuant to this section is issued on or after January 1, 1995.
(m)Except for subdivision (j), this section shall also apply to minors adjudged wards pursuant to Section 727.31.
(n)(1)Notwithstanding Section 8704 of the Family Code or any other law, the court, at a hearing held pursuant to this section or anytime thereafter, may designate a current caretaker as a prospective adoptive parent if the child has lived with the caretaker for at least six months, the caretaker currently expresses a commitment to adopt the child, and the caretaker has taken at least one step to facilitate the adoption process. In determining whether to make that designation, the court may take into consideration whether the caretaker is listed in the preliminary assessment prepared by the county department in accordance with subdivision (i) of Section 366.21 as an appropriate person to be considered as an adoptive parent for the child and the recommendation of the State Department of Social Services, county adoption agency, or licensed adoption agency.
(2)For purposes of this subdivision, steps to facilitate the adoption process include, but are not limited to, the following:
(A)Applying for an adoption homestudy.
(B)Cooperating with an adoption homestudy.
(C)Being designated by the court or the adoption agency as the adoptive family.
(D)Requesting de facto parent status.
(E)Signing an adoptive placement agreement.
(F)Engaging in discussions regarding a postadoption contact agreement.
(G)Working to overcome any impediments that have been identified by the State Department of Social Services, county adoption agency, or licensed adoption agency.
(H)Attending classes required of prospective adoptive parents.
(3)Prior to a change in placement and as soon as possible after a decision is made to remove a child from the home of a designated prospective adoptive parent, the agency shall notify the court, the designated prospective adoptive parent or the current caretaker, if that caretaker would have met the threshold criteria to be designated as a prospective adoptive parent pursuant to paragraph (1) on the date of service of this notice, the childs attorney, and the child, if the child is 10 years of age or older, of the proposal in the manner described in Section 16010.6.
(A)Within five court days or seven calendar days, whichever is longer, of the date of notification, the child, the childs attorney, or the designated prospective adoptive parent may file a petition with the court objecting to the proposal to remove the child, or the court, upon its own motion, may set a hearing regarding the proposal. The court may, for good cause, extend the filing period. A caretaker who would have met the threshold criteria to be designated as a prospective adoptive parent pursuant to paragraph (1) on the date of service of the notice of proposed removal of the child may file, together with the petition under this subparagraph, a petition for an order designating the caretaker as a prospective adoptive parent for purposes of this subdivision.
(B)A hearing ordered pursuant to this paragraph shall be held as soon as possible and not later than five court days after the petition is filed with the court or the court sets a hearing upon its own motion, unless the court for good cause is unable to set the matter for hearing five court days after the petition is filed, in which case the court shall set the matter for hearing as soon as possible. At the hearing, the court shall determine whether the caretaker has met the threshold criteria to be designated as a prospective adoptive parent pursuant to paragraph (1), and whether the proposed removal of the child from the home of the designated prospective adoptive parent is in the childs best interest, and the child may not be removed from the home of the designated prospective adoptive parent unless the court finds that removal is in the childs best interest. If the court determines that the caretaker did not meet the threshold criteria to be designated as a prospective adoptive parent on the date of service of the notice of proposed removal of the child, the petition objecting to the proposed removal filed by the caretaker shall be dismissed. If the caretaker was designated as a prospective adoptive parent prior to this hearing, the court shall inquire into any progress made by the caretaker towards the adoption of the child since the caretaker was designated as a prospective adoptive parent.
(C)A determination by the court that the caretaker is a designated prospective adoptive parent pursuant to paragraph (1) or subparagraph (B) does not make the caretaker a party to the dependency proceeding nor does it confer on the caretaker any standing to object to any other action of the department, county adoption agency, or licensed adoption agency, unless the caretaker has been declared a de facto parent by the court prior to the notice of removal served pursuant to paragraph (3).
(D)If a petition objecting to the proposal to remove the child is not filed, and the court, upon its own motion, does not set a hearing, the child may be removed from the home of the designated prospective adoptive parent without a hearing.
(4)Notwithstanding paragraph (3), if the State Department of Social Services, county adoption agency, or licensed adoption agency determines that the child must be removed from the home of the caretaker who is or may be a designated prospective adoptive parent immediately, due to a risk of physical or emotional harm, the agency may remove the child from that home and is not required to provide notice prior to the removal. However, as soon as possible and not longer than two court days after the removal, the agency shall notify the court, the caretaker who is or may be a designated prospective adoptive parent, the childs attorney, and the child, if the child is 10 years of age or older, of the removal. Within five court days or seven calendar days, whichever is longer, of the date of notification of the removal, the child, the childs attorney, or the caretaker who is or may be a designated prospective adoptive parent may petition for, or the court on its own motion may set, a noticed hearing pursuant to paragraph (3). The court may, for good cause, extend the filing period.
(5)Except as provided in subdivision (b) of Section 366.28, an order by the court issued after a hearing pursuant to this subdivision shall not be appealable.
(6)Nothing in this section shall preclude a county child protective services agency from fully investigating and responding to alleged abuse or neglect of a child pursuant to Section 11165.5 of the Penal Code.
(7)The Judicial Council shall prepare forms to facilitate the filing of the petitions described in this subdivision, which shall become effective on January 1, 2006.
SEC. 1.5.Section 366.26 of the Welfare and Institutions Code is amended to read:366.26.(a)This section applies to children who are adjudged dependent children of the juvenile court pursuant to subdivision (d) of Section 360. The procedures specified in this section are the exclusive procedures for conducting these hearings. The procedures in Part 2 (commencing with Section 3020) of Division 8 of the Family Code are not applicable to these proceedings. Section 8616.5 of the Family Code is applicable and available to all dependent children meeting the requirements of that section, if the postadoption contact agreement has been entered into voluntarily. For children who are adjudged dependent children of the juvenile court pursuant to subdivision (d) of Section 360, this section, and Sections 8604, 8605, 8606, and 8700 of the Family Code and Chapter 5 (commencing with Section 7660) of Part 3 of Division 12 of the Family Code specify the exclusive procedures for permanently terminating parental rights with regard to, or establishing legal guardianship of, the child while the child is a dependent child of the juvenile court.
(b)At the hearing, which shall be held in juvenile court for all children who are dependents of the juvenile court, the court, in order to provide stable, permanent homes for these children, shall review the report as specified in Section 361.5, 366.21, 366.22, or 366.25, shall indicate that the court has read and considered it, shall receive other evidence that the parties may present, and shall make findings and orders in the following order of preference:
(1)Terminate the rights of the parent or parents and order that the child be placed for adoption and, upon the filing of a petition for adoption in the juvenile court, order that a hearing be set. The court shall proceed with the adoption after the appellate rights of the natural parents have been exhausted.
(2)Order, without termination of parental rights, the plan of tribal customary adoption, as described in Section 366.24, through tribal custom, traditions, or law of the Indian childs tribe, and upon the court affording the tribal customary adoption order full faith and credit at the continued selection and implementation hearing, order that a hearing be set pursuant to paragraph (2) of subdivision (e).
(3)Appoint a relative or relatives with whom the child is currently residing as legal guardian or guardians for the child, and order that letters of guardianship issue.
(4)On making a finding under paragraph (3) of subdivision (c), identify adoption or tribal customary adoption as the permanent placement goal and order that efforts be made to locate an appropriate adoptive family for the child within a period not to exceed 180 days.
(5)Appoint a nonrelative legal guardian for the child and order that letters of guardianship issue.
(6)Order that the child be permanently placed with a fit and willing relative, subject to the periodic review of the juvenile court under Section 366.3.
(7)Order that the child remain in foster care, subject to the conditions described in paragraph (4) of subdivision (c) and the periodic review of the juvenile court under Section 366.3.
In choosing among the alternatives in this subdivision, the court shall proceed pursuant to subdivision (c).
(c)(1)If the court determines, based on the assessment provided as ordered under subdivision (i) of Section 366.21, subdivision (b) of Section 366.22, or subdivision (b) of Section 366.25, and any other relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. The fact that the child is not yet placed in a preadoptive home nor with a relative or foster family who is prepared to adopt the child, shall not constitute a basis for the court to conclude that it is not likely the child will be adopted. A finding under subdivision (b) or paragraph (1) of subdivision (e) of Section 361.5 that reunification services shall not be offered, under subdivision (e) of Section 366.21 that the whereabouts of a parent have been unknown for six months or that the parent has failed to visit or contact the child for six months, or that the parent has been convicted of a felony indicating parental unfitness, or, under Section 366.21 or 366.22, that the court has continued to remove the child from the custody of the parent or guardian and has terminated reunification services, shall constitute a sufficient basis for termination of parental rights. Under these circumstances, the court shall terminate parental rights unless either of the following applies:
(A)The child is living with a relative who is unable or unwilling to adopt the child because of circumstances that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment through legal guardianship, and the removal of the child from the custody of his or her relative would be detrimental to the emotional well-being of the child. For purposes of an Indian child, relative shall include an extended family member, as defined in the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1903(2)).
(B)The court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances:
(i)The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.
(ii)A child 12 years of age or older objects to termination of parental rights.
(iii)The child is placed in a residential treatment facility, adoption is unlikely or undesirable, and continuation of parental rights will not prevent finding the child a permanent family placement if the parents cannot resume custody when residential care is no longer needed.
(iv)The child is living with a foster parent or Indian custodian who is unable or unwilling to adopt the child because of exceptional circumstances, that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment and the removal of the child from the physical custody of his or her foster parent or Indian custodian would be detrimental to the emotional well-being of the child. This clause does not apply to any child who is either (I) under six years of age or (II) a member of a sibling group where at least one child is under six years of age and the siblings are, or should be, permanently placed together.
(v)There would be substantial interference with a childs sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption.
(vi)The child is an Indian child and there is a compelling reason for determining that termination of parental rights would not be in the best interest of the child, including, but not limited to:
(I)Termination of parental rights would substantially interfere with the childs connection to his or her tribal community or the childs tribal membership rights.
(II)The childs tribe has identified guardianship, foster care with a fit and willing relative, tribal customary adoption, or another planned permanent living arrangement for the child.
(III)The child is a nonminor dependent, and the nonminor and the nonminors tribe have identified tribal customary adoption for the nonminor.
(C)For purposes of subparagraph (B), in the case of tribal customary adoptions, Section 366.24 shall apply.
(D)If the court finds that termination of parental rights would be detrimental to the child pursuant to clause (i), (ii), (iii), (iv), (v), or (vi), it shall state its reasons in writing or on the record.
(2)The court shall not terminate parental rights if:
(A)At each hearing at which the court was required to consider reasonable efforts or services, the court has found that reasonable efforts were not made or that reasonable services were not offered or provided.
(B)In the case of an Indian child:
(i)At the hearing terminating parental rights, the court has found that active efforts were not made as required in Section 361.7.
(ii)The court does not make a determination at the hearing terminating parental rights, supported by evidence beyond a reasonable doubt, including testimony of one or more qualified expert witnesses as defined in Section 224.6, that the continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child.
(iii)The court has ordered tribal customary adoption pursuant to Section 366.24.
(3)If the court finds that termination of parental rights would not be detrimental to the child pursuant to paragraph (1) and that the child has a probability for adoption but is difficult to place for adoption and there is no identified or available prospective adoptive parent, the court may identify adoption as the permanent placement goal and, without terminating parental rights, order that efforts be made to locate an appropriate adoptive family for the child, within the state or out of the state, within a period not to exceed 180 days. During this 180-day period, the public agency responsible for seeking adoptive parents for each child shall, to the extent possible, ask each child who is 10 years of age or older to identify any individuals, other than the childs siblings, who are important to the child, in order to identify potential adoptive parents. The public agency may ask any other child to provide that information, as appropriate. During the 180-day period, the public agency shall, to the extent possible, contact other private and public adoption agencies regarding the availability of the child for adoption. During the 180-day period, the public agency shall conduct the search for adoptive parents in the same manner as prescribed for children in Sections 8708 and 8709 of the Family Code. At the expiration of this period, another hearing shall be held and the court shall proceed pursuant to paragraph (1), (2), (3), (5), or (6) of subdivision (b). For purposes of this section, a child may only be found to be difficult to place for adoption if there is no identified or available prospective adoptive parent for the child because of the childs membership in a sibling group, or the presence of a diagnosed medical, physical, or mental handicap, or the child is seven years of age or older.
(4)(A)If the court finds that adoption of the child or termination of parental rights is not in the best interest of the child, because one of the conditions in clause (i), (ii), (iii), (iv), (v), or (vi) of subparagraph (B) of paragraph (1) or in paragraph (2) applies, the court shall order that the present caretakers or other appropriate persons shall become legal guardians of the child, or, in the case of an Indian child, consider a tribal customary adoption pursuant to Section 366.24. Legal guardianship shall be considered before continuing the child in foster care under any other permanent plan, if it is in the best interests of the child and if a suitable guardian can be found. If the child continues in foster care, the court shall make factual findings identifying any barriers to achieving adoption, tribal customary adoption in the case of an Indian child, legal guardianship, or placement with a fit and willing relative as of the date of the hearing. A child who is 10 years of age or older, shall be asked to identify any individuals, other than the childs siblings, who are important to the child, in order to identify potential guardians or, in the case of an Indian child, prospective tribal customary adoptive parents. The agency may ask any other child to provide that information, as appropriate.
(B)(i)If the child is living with an approved relative who is willing and capable of providing a stable and permanent environment, but not willing to become a legal guardian as of the hearing date, the court shall order a permanent plan of placement with a fit and willing relative, and the child shall not be removed from the home if the court finds the removal would be seriously detrimental to the emotional well-being of the child because the child has substantial psychological ties to the relative caretaker.
(ii)If the child is living with a nonrelative caregiver who is willing and capable of providing a stable and permanent environment, but not willing to become a legal guardian as of the hearing date, the court shall order that the child remain in foster care with a permanent plan of return home, adoption, legal guardianship, or placement with a fit and willing relative, as appropriate. If the child is 16 years of age or older, or a nonminor dependent, and no other permanent plan is appropriate at the time of the hearing, the court may order another planned permanent living arrangement, as described in paragraph (2) of subdivision (i) of Section 16501. Regardless of the age of the child, the child shall not be removed from the home if the court finds the removal would be seriously detrimental to the emotional well-being of the child because the child has substantial psychological ties to the caregiver.
(iii)If the child is living in a group home or, on or after January 1, 2017, a short-term residential therapeutic program, the court shall order that the child remain in foster care with a permanent plan of return home, adoption, tribal customary adoption in the case of an Indian child, legal guardianship, or placement with a fit and willing relative, as appropriate. If the child is 16 years of age or older, or a nonminor dependent, and no other permanent plan is appropriate at the time of the hearing, the court may order another planned permanent living arrangement, as described in paragraph (2) of subdivision (i) of Section 16501.
(C)The court shall also make an order for visitation with the parents or guardians unless the court finds by a preponderance of the evidence that the visitation would be detrimental to the physical or emotional well-being of the child.
(5)If the court finds that the child should not be placed for adoption, that legal guardianship shall not be established, that placement with a fit and willing relative is not appropriate as of the hearing date, and that there are no suitable foster parents except certified family homes or resource families of a foster family agency available to provide the child with a stable and permanent environment, the court may order the care, custody, and control of the child transferred from the county welfare department to a licensed foster family agency. The court shall consider the written recommendation of the county welfare director regarding the suitability of the transfer. The transfer shall be subject to further court orders.
The licensed foster family agency shall place the child in a suitable licensed or certified family home that has been certified by the agency as meeting licensing standards or with a resource family approved by the agency. The licensed foster family agency shall be responsible for supporting the child and providing appropriate services to the child, including those services ordered by the court. Responsibility for the support of the child shall not, in and of itself, create liability on the part of the foster family agency to third persons injured by the child. Those children whose care, custody, and control are transferred to a foster family agency shall not be eligible for foster care maintenance payments or child welfare services, except for emergency response services pursuant to Section 16504.
(d)The proceeding for the appointment of a guardian for a child who is a dependent of the juvenile court shall be conducted in the juvenile court. If the court finds pursuant to this section that legal guardianship is the appropriate permanent plan, it shall appoint the legal guardian and issue letters of guardianship. The assessment prepared pursuant to subdivision (g) of Section 361.5, subdivision (i) of Section 366.21, subdivision (c) of Section 366.22, and subdivision (b) of Section 366.25 shall be read and considered by the court prior to the appointment, and this shall be reflected in the minutes of the court. Such assessment may also include the naming of a prospective successor guardian, if one is identified. In the event of the incapacity or death of the appointed guardian, the named successor guardian may be assessed and appointed pursuant to this section. The person preparing the assessment may be called and examined by any party to the proceeding.
(e)(1)The proceeding for the adoption of a child who is a dependent of the juvenile court shall be conducted in the juvenile court if the court finds pursuant to this section that adoption is the appropriate permanent plan and the petition for adoption is filed in the juvenile court. Upon the filing of a petition for adoption, the juvenile court shall order that an adoption hearing be set. The court shall proceed with the adoption after the appellate rights of the natural parents have been exhausted. The full report required by Section 8715 of the Family Code shall be read and considered by the court prior to the adoption and this shall be reflected in the minutes of the court. The person preparing the report may be called and examined by any party to the proceeding. It is the intent of the Legislature, pursuant to this subdivision, to give potential adoptive parents the option of filing in the juvenile court the petition for the adoption of a child who is a dependent of the juvenile court. Nothing in this section is intended to prevent the filing of a petition for adoption in any other court as permitted by law, instead of in the juvenile court.
(2)In the case of an Indian child, if the Indian childs tribe has elected a permanent plan of tribal customary adoption, the court, upon receiving the tribal customary adoption order will afford the tribal customary adoption order full faith and credit to the same extent that the court would afford full faith and credit to the public acts, records, judicial proceedings, and judgments of any other entity. Upon a determination that the tribal customary adoption order may be afforded full faith and credit, consistent with Section 224.5, the court shall thereafter order a hearing to finalize the adoption be set upon the filing of the adoption petition. The prospective tribal customary adoptive parents and the child who is the subject of the tribal customary adoption petition shall appear before the court for the finalization hearing. The court shall thereafter issue an order of adoption pursuant to Section 366.24.
(3)If a child who is the subject of a finalized tribal customary adoption shows evidence of a developmental disability or mental illness as a result of conditions existing before the tribal customary adoption to the extent that the child cannot be relinquished to a licensed adoption agency on the grounds that the child is considered unadoptable, and of which condition the tribal customary adoptive parent or parents had no knowledge or notice before the entry of the tribal customary adoption order, a petition setting forth those facts may be filed by the tribal customary adoptive parent or parents with the juvenile court that granted the tribal customary adoption petition. If these facts are proved to the satisfaction of the juvenile court, it may make an order setting aside the tribal customary adoption order. The set-aside petition shall be filed within five years of the issuance of the tribal customary adoption order. The court clerk shall immediately notify the childs tribe and the department in Sacramento of the petition within 60 days after the notice of filing of the petition. The department shall file a full report with the court and shall appear before the court for the purpose of representing the child. Whenever a final decree of tribal customary adoption has been vacated or set aside, the child shall be returned to the custody of the county in which the proceeding for tribal customary adoption was finalized. The biological parent or parents of the child may petition for return of custody. The disposition of the child after the court has entered an order to set aside a tribal customary adoption shall include consultation with the childs tribe.
(f)At the beginning of any proceeding pursuant to this section, if the child or the parents are not being represented by previously retained or appointed counsel, the court shall proceed as follows:
(1)In accordance with subdivision (c) of Section 317, if a child before the court is without counsel, the court shall appoint counsel unless the court finds that the child would not benefit from the appointment of counsel. The court shall state on the record its reasons for that finding.
(2)If a parent appears without counsel and is unable to afford counsel, the court shall appoint counsel for the parent, unless this representation is knowingly and intelligently waived. The same counsel shall not be appointed to represent both the child and his or her parent. The public defender or private counsel may be appointed as counsel for the parent.
(3)Private counsel appointed under this section shall receive a reasonable sum for compensation and expenses, the amount of which shall be determined by the court. The amount shall be paid by the real parties in interest, other than the child, in any proportions the court deems just. However, if the court finds that any of the real parties in interest are unable to afford counsel, the amount shall be paid out of the general fund of the county.
(g)The court may continue the proceeding for a period of time not to exceed 30 days as necessary to appoint counsel, and to enable counsel to become acquainted with the case.
(h)(1)At all proceedings under this section, the court shall consider the wishes of the child and shall act in the best interests of the child.
(2)In accordance with Section 349, the child shall be present in court if the child or the childs counsel so requests or the court so orders. If the child is 10 years of age or older and is not present at a hearing held pursuant to this section, the court shall determine whether the minor was properly notified of his or her right to attend the hearing and inquire as to the reason why the child is not present.
(3)(A)The testimony of the child may be taken in chambers and outside the presence of the childs parent or parents, if the childs parent or parents are represented by counsel, the counsel is present, and any of the following circumstances exist:
(i)The court determines that testimony in chambers is necessary to ensure truthful testimony.
(ii)The child is likely to be intimidated by a formal courtroom setting.
(iii)The child is afraid to testify in front of his or her parent or parents.
(B)After testimony in chambers, the parent or parents of the child may elect to have the court reporter read back the testimony or have the testimony summarized by counsel for the parent or parents.
(C)The testimony of a child also may be taken in chambers and outside the presence of the guardian or guardians of a child under the circumstances specified in this subdivision.
(i)(1)Any order of the court permanently terminating parental rights under this section shall be conclusive and binding upon the child, upon the parent or parents and, upon all other persons who have been served with citation by publication or otherwise as provided in this chapter. After making the order, the juvenile court shall have no power to set aside, change, or modify it, except as provided in paragraph (2), but nothing in this section shall be construed to limit the right to appeal the order.
(2)A tribal customary adoption order evidencing that the Indian child has been the subject of a tribal customary adoption shall be afforded full faith and credit and shall have the same force and effect as an order of adoption authorized by this section. The rights and obligations of the parties as to the matters determined by the Indian childs tribe shall be binding on all parties. A court shall not order compliance with the order absent a finding that the party seeking the enforcement participated, or attempted to participate, in good faith, in family mediation services of the court or dispute resolution through the tribe regarding the conflict, prior to the filing of the enforcement action.
(3)A child who has not been adopted after the passage of at least three years from the date the court terminated parental rights and for whom the court has determined that adoption is no longer the permanent plan may petition the juvenile court to reinstate parental rights pursuant to the procedure prescribed by Section 388. The child may file the petition prior to the expiration of this three-year period if the State Department of Social Services, county adoption agency, or licensed adoption agency that is responsible for custody and supervision of the child as described in subdivision (j) and the child stipulate that the child is no longer likely to be adopted. A child over 12 years of age shall sign the petition in the absence of a showing of good cause as to why the child could not do so. If it appears that the best interests of the child may be promoted by reinstatement of parental rights, the court shall order that a hearing be held and shall give prior notice, or cause prior notice to be given, to the social worker or probation officer and to the childs attorney of record, or, if there is no attorney of record for the child, to the child, and the childs tribe, if applicable, by means prescribed by subdivision (c) of Section 297. The court shall order the child or the social worker or probation officer to give prior notice of the hearing to the childs former parent or parents whose parental rights were terminated in the manner prescribed by subdivision (f) of Section 294 where the recommendation is adoption. The juvenile court shall grant the petition if it finds by clear and convincing evidence that the child is no longer likely to be adopted and that reinstatement of parental rights is in the childs best interest. If the court reinstates parental rights over a child who is under 12 years of age and for whom the new permanent plan will not be reunification with a parent or legal guardian, the court shall specify the factual basis for its findings that it is in the best interest of the child to reinstate parental rights. This subdivision is intended to be retroactive and applies to any child who is under the jurisdiction of the juvenile court at the time of the hearing regardless of the date parental rights were terminated.
(j)If the court, by order or judgment, declares the child free from the custody and control of both parents, or one parent if the other does not have custody and control, or declares the child eligible for tribal customary adoption, the court shall at the same time order the child referred to the State Department of Social Services, county adoption agency, or licensed adoption agency for adoptive placement by the agency. However, except in the case of a tribal customary adoption where there is no termination of parental rights, a petition for adoption may not be granted until the appellate rights of the natural parents have been exhausted. The State Department of Social Services, county adoption agency, or licensed adoption agency shall be responsible for the custody and supervision of the child and shall be entitled to the exclusive care and control of the child at all times until a petition for adoption or tribal customary adoption is granted, except as specified in subdivision (n). With the consent of the agency, the court may appoint a guardian of the child, who shall serve until the child is adopted.
(k)(1)Notwithstanding any other law, the application of any person who, as a relative caretaker or foster parent, has cared for a dependent child for whom the court has approved a permanent plan for adoption, or who has been freed for adoption, shall be given preference with respect to that child over all other applications for adoptive placement if the agency making the placement determines that the child has substantial emotional ties to the relative caretaker or foster parent and removal from the relative caretaker or foster parent would be seriously detrimental to the childs emotional well-being.
(2)As used in this subdivision, preference means that the application shall be processed and, if satisfactory, the family study shall be completed before the processing of the application of any other person for the adoptive placement of the child.
(l)(1)An order by the court that a hearing pursuant to this section be held is not appealable at any time unless all of the following apply:
(A)A petition for extraordinary writ review was filed in a timely manner.
(B)The petition substantively addressed the specific issues to be challenged and supported that challenge by an adequate record.
(C)The petition for extraordinary writ review was summarily denied or otherwise not decided on the merits.
(2)Failure to file a petition for extraordinary writ review within the period specified by rule, to substantively address the specific issues challenged, or to support that challenge by an adequate record shall preclude subsequent review by appeal of the findings and orders made pursuant to this section.
(3)The Judicial Council shall adopt rules of court, effective January 1, 1995, to ensure all of the following:
(A)A trial court, after issuance of an order directing a hearing pursuant to this section be held, shall advise all parties of the requirement of filing a petition for extraordinary writ review as set forth in this subdivision in order to preserve any right to appeal in these issues.
(i)If a party is present at the time of the making of the order, the notice shall be made orally to the party.
(ii)If the party is not present at the time of making the order, the notice shall be made by the clerk of the court by first-class mail to the last known address of a party or by electronic service pursuant to Section 212.5. If the notice is for a hearing at which the social worker will recommend the termination of parental rights, the notice may be electronically served pursuant to Section 212.5, but only in addition to service of the notice by first-class mail.
(B)The prompt transmittal of the records from the trial court to the appellate court.
(C)That adequate time requirements for counsel and court personnel exist to implement the objective of this subdivision.
(D)That the parent or guardian, or their trial counsel or other counsel, is charged with the responsibility of filing a petition for extraordinary writ relief pursuant to this subdivision.
(4)The intent of this subdivision is to do both of the following:
(A)Make every reasonable attempt to achieve a substantive and meritorious review by the appellate court within the time specified in Sections 366.21, 366.22, and 366.25 for holding a hearing pursuant to this section.
(B)Encourage the appellate court to determine all writ petitions filed pursuant to this subdivision on their merits.
(5)This subdivision shall only apply to cases in which an order to set a hearing pursuant to this section is issued on or after January 1, 1995.
(m)Except for subdivision (j), this section shall also apply to minors adjudged wards pursuant to Section 727.31.
(n)(1)Notwithstanding Section 8704 of the Family Code or any other law, the court, at a hearing held pursuant to this section or anytime thereafter, may designate a current caretaker as a prospective adoptive parent if the child has lived with the caretaker for at least six months, the caretaker currently expresses a commitment to adopt the child, and the caretaker has taken at least one step to facilitate the adoption process. In determining whether to make that designation, the court may take into consideration whether the caretaker is listed in the preliminary assessment prepared by the county department in accordance with subdivision (i) of Section 366.21 as an appropriate person to be considered as an adoptive parent for the child and the recommendation of the State Department of Social Services, county adoption agency, or licensed adoption agency.
(2)For purposes of this subdivision, steps to facilitate the adoption process include, but are not limited to, the following:
(A)Applying for an adoption homestudy.
(B)Cooperating with an adoption homestudy.
(C)Being designated by the court or the adoption agency as the adoptive family.
(D)Requesting de facto parent status.
(E)Signing an adoptive placement agreement.
(F)Engaging in discussions regarding a postadoption contact agreement.
(G)Working to overcome any impediments that have been identified by the State Department of Social Services, county adoption agency, or licensed adoption agency.
(H)Attending classes required of prospective adoptive parents.
(3)Prior to a change in placement and as soon as possible after a decision is made to remove a child from the home of a designated prospective adoptive parent, the agency shall notify the court, the designated prospective adoptive parent or the current caretaker, if that caretaker would have met the threshold criteria to be designated as a prospective adoptive parent pursuant to paragraph (1) on the date of service of this notice, the childs attorney, and the child, if the child is 10 years of age or older, of the proposal in the manner described in Section 16010.6.
(A)Within five court days or seven calendar days, whichever is longer, of the date of notification, the child, the childs attorney, or the designated prospective adoptive parent may file a petition with the court objecting to the proposal to remove the child, or the court, upon its own motion, may set a hearing regarding the proposal. The court may, for good cause, extend the filing period. A caretaker who would have met the threshold criteria to be designated as a prospective adoptive parent pursuant to paragraph (1) on the date of service of the notice of proposed removal of the child may file, together with the petition under this subparagraph, a petition for an order designating the caretaker as a prospective adoptive parent for purposes of this subdivision.
(B)A hearing ordered pursuant to this paragraph shall be held as soon as possible and not later than five court days after the petition is filed with the court or the court sets a hearing upon its own motion, unless the court for good cause is unable to set the matter for hearing five court days after the petition is filed, in which case the court shall set the matter for hearing as soon as possible. At the hearing, the court shall determine whether the caretaker has met the threshold criteria to be designated as a prospective adoptive parent pursuant to paragraph (1), and whether the proposed removal of the child from the home of the designated prospective adoptive parent is in the childs best interest, and the child may not be removed from the home of the designated prospective adoptive parent unless the court finds that removal is in the childs best interest. If the court determines that the caretaker did not meet the threshold criteria to be designated as a prospective adoptive parent on the date of service of the notice of proposed removal of the child, the petition objecting to the proposed removal filed by the caretaker shall be dismissed. If the caretaker was designated as a prospective adoptive parent prior to this hearing, the court shall inquire into any progress made by the caretaker towards the adoption of the child since the caretaker was designated as a prospective adoptive parent.
(C)A determination by the court that the caretaker is a designated prospective adoptive parent pursuant to paragraph (1) or subparagraph (B) does not make the caretaker a party to the dependency proceeding nor does it confer on the caretaker any standing to object to any other action of the department, county adoption agency, or licensed adoption agency, unless the caretaker has been declared a de facto parent by the court prior to the notice of removal served pursuant to paragraph (3).
(D)If a petition objecting to the proposal to remove the child is not filed, and the court, upon its own motion, does not set a hearing, the child may be removed from the home of the designated prospective adoptive parent without a hearing.
(4)Notwithstanding paragraph (3), if the State Department of Social Services, county adoption agency, or licensed adoption agency determines that the child must be removed from the home of the caretaker who is or may be a designated prospective adoptive parent immediately, due to a risk of physical or emotional harm, the agency may remove the child from that home and is not required to provide notice prior to the removal. However, as soon as possible and not longer than two court days after the removal, the agency shall notify the court, the caretaker who is or may be a designated prospective adoptive parent, the childs attorney, and the child, if the child is 10 years of age or older, of the removal. Within five court days or seven calendar days, whichever is longer, of the date of notification of the removal, the child, the childs attorney, or the caretaker who is or may be a designated prospective adoptive parent may petition for, or the court on its own motion may set, a noticed hearing pursuant to paragraph (3). The court may, for good cause, extend the filing period.
(5)Except as provided in subdivision (b) of Section 366.28, an order by the court issued after a hearing pursuant to this subdivision shall not be appealable.
(6)Nothing in this section shall preclude a county child protective services agency from fully investigating and responding to alleged abuse or neglect of a child pursuant to Section 11165.5 of the Penal Code.
(7)The Judicial Council shall prepare forms to facilitate the filing of the petitions described in this subdivision, which shall become effective on January 1, 2006.
SEC. 2.Section 1.5 of this bill incorporates amendments to Section 366.26 of the Welfare and Institutions Code proposed by both this bill and Assembly Bill 976. That section shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2018, (2) each bill amends Section 366.26 of the Welfare and Institutions Code, and (3) this bill is enacted after Assembly Bill 976, in which case Section 1 of this bill shall not become operative.
(a)This section applies to children who are adjudged dependent children of the juvenile court pursuant to subdivision (d) of Section 360. The procedures specified in this section are the exclusive procedures for conducting these hearings. The procedures in Part 2 (commencing with Section 3020) of Division 8 of the Family Code are not applicable to these proceedings. Section 8616.5 of the Family Code is applicable and available to all dependent children meeting the requirements of that section, if the postadoption contact agreement has been entered into voluntarily. For children who are adjudged dependent children of the juvenile court pursuant to subdivision (d) of Section 360, this section, and Sections 8604, 8605, 8606, and 8700 of the Family Code and Chapter 5 (commencing with Section 7660) of Part 3 of Division 12 of the Family Code specify the exclusive procedures for permanently terminating parental rights with regard to, or establishing legal guardianship of, the child while the child is a dependent child of the juvenile court.
(b)At the hearing, which shall be held in juvenile court for all children who are dependents of the juvenile court, the court, in order to provide stable, permanent homes for these children, shall review the report as specified in Section 361.5, 366.21, 366.22, or 366.25, shall indicate that the court has read and considered it, shall receive other evidence that the parties may present, and shall make findings and orders in the following order of preference:
(1)Terminate the rights of the parent or parents and order that the child be placed for adoption and, upon the filing of a petition for adoption in the juvenile court, order that a hearing be set. The court shall proceed with the adoption after the appellate rights of the natural parents have been exhausted.
(2)Order, without termination of parental rights, the plan of tribal customary adoption, as described in Section 366.24, through tribal custom, traditions, or law of the Indian childs tribe, and upon the court affording the tribal customary adoption order full faith and credit at the continued selection and implementation hearing, order that a hearing be set pursuant to paragraph (2) of subdivision (e).
(3)Appoint a relative or relatives with whom the child is currently residing as legal guardian or guardians for the child, and order that letters of guardianship issue.
(4)On making a finding under paragraph (3) of subdivision (c), identify adoption or tribal customary adoption as the permanent placement goal and order that efforts be made to locate an appropriate adoptive family for the child within a period not to exceed 180 days.
(5)Appoint a nonrelative legal guardian for the child and order that letters of guardianship issue.
(6)Order that the child be permanently placed with a fit and willing relative, subject to the periodic review of the juvenile court under Section 366.3.
(7)Order that the child remain in foster care, subject to the conditions described in paragraph (4) of subdivision (c) and the periodic review of the juvenile court under Section 366.3.
In choosing among the alternatives in this subdivision, the court shall proceed pursuant to subdivision (c).
(c)(1)If the court determines, based on the assessment provided as ordered under subdivision (i) of Section 366.21, subdivision (b) of Section 366.22, or subdivision (b) of Section 366.25, and any other relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. The fact that the child is not yet placed in a preadoptive home nor with a relative or foster family who is prepared to adopt the child, shall not constitute a basis for the court to conclude that it is not likely the child will be adopted. A finding under subdivision (b) or paragraph (1) of subdivision (e) of Section 361.5 that reunification services shall not be offered, under subdivision (e) of Section 366.21 that the whereabouts of a parent have been unknown for six months or that the parent has failed to visit or contact the child for six months, or that the parent has been convicted of a felony indicating parental unfitness, or, under Section 366.21 or 366.22, that the court has continued to remove the child from the custody of the parent or guardian and has terminated reunification services, shall constitute a sufficient basis for termination of parental rights. Under these circumstances, the court shall terminate parental rights unless either of the following applies:
(A)The child is living with a relative who is unable or unwilling to adopt the child because of circumstances that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment through legal guardianship, and the removal of the child from the custody of his or her relative would be detrimental to the emotional well-being of the child. For purposes of an Indian child, relative shall include an extended family member, as defined in the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1903(2)).
(B)The court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances:
(i)The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.
(ii)A child 12 years of age or older objects to termination of parental rights.
(iii)The child is placed in a residential treatment facility, adoption is unlikely or undesirable, and continuation of parental rights will not prevent finding the child a permanent family placement if the parents cannot resume custody when residential care is no longer needed.
(iv)The child is living with a foster parent or Indian custodian who is unable or unwilling to adopt the child because of exceptional circumstances, that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment and the removal of the child from the physical custody of his or her foster parent or Indian custodian would be detrimental to the emotional well-being of the child. This clause does not apply to any child who is either (I) under six years of age or (II) a member of a sibling group where at least one child is under six years of age and the siblings are, or should be, permanently placed together.
(v)There would be substantial interference with a childs sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption.
(vi)The child is an Indian child and there is a compelling reason for determining that termination of parental rights would not be in the best interest of the child, including, but not limited to:
(I)Termination of parental rights would substantially interfere with the childs connection to his or her tribal community or the childs tribal membership rights.
(II)The childs tribe has identified guardianship, foster care with a fit and willing relative, tribal customary adoption, or another planned permanent living arrangement for the child.
(III)The child is a nonminor dependent, and the nonminor and the nonminors tribe have identified tribal customary adoption for the nonminor.
(C)For purposes of subparagraph (B), in the case of tribal customary adoptions, Section 366.24 shall apply.
(D)If the court finds that termination of parental rights would be detrimental to the child pursuant to clause (i), (ii), (iii), (iv), (v), or (vi), it shall state its reasons in writing or on the record.
(2)The court shall not terminate parental rights if:
(A)At each hearing at which the court was required to consider reasonable efforts or services, the court has found that reasonable efforts were not made or that reasonable services were not offered or provided.
(B)In the case of an Indian child:
(i)At the hearing terminating parental rights, the court has found that active efforts were not made as required in Section 361.7.
(ii)The court does not make a determination at the hearing terminating parental rights, supported by evidence beyond a reasonable doubt, including testimony of one or more qualified expert witnesses as defined in Section 224.6, that the continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child.
(iii)The court has ordered tribal customary adoption pursuant to Section 366.24.
(3)If the court finds that termination of parental rights would not be detrimental to the child pursuant to paragraph (1) and that the child has a probability for adoption but is difficult to place for adoption and there is no identified or available prospective adoptive parent, the court may identify adoption as the permanent placement goal and, without terminating parental rights, order that efforts be made to locate an appropriate adoptive family for the child, within the state or out of the state, within a period not to exceed 180 days. During this 180-day period, the public agency responsible for seeking adoptive parents for each child shall, to the extent possible, ask each child who is 10 years of age or older to identify any individuals, other than the childs siblings, who are important to the child, in order to identify potential adoptive parents. The public agency may ask any other child to provide that information, as appropriate. During the 180-day period, the public agency shall, to the extent possible, contact other private and public adoption agencies regarding the availability of the child for adoption. During the 180-day period, the public agency shall conduct the search for adoptive parents in the same manner as prescribed for children in Sections 8708 and 8709 of the Family Code. At the expiration of this period, another hearing shall be held and the court shall proceed pursuant to paragraph (1), (2), (3), (5), or (6) of subdivision (b). For purposes of this section, a child may only be found to be difficult to place for adoption if there is no identified or available prospective adoptive parent for the child because of the childs membership in a sibling group, or the presence of a diagnosed medical, physical, or mental handicap, or the child is seven years of age or older.
(4)(A)If the court finds that adoption of the child or termination of parental rights is not in the best interest of the child, because one of the conditions in clause (i), (ii), (iii), (iv), (v), or (vi) of subparagraph (B) of paragraph (1) or in paragraph (2) applies, the court shall order that the present caretakers or other appropriate persons shall become legal guardians of the child, or, in the case of an Indian child, consider a tribal customary adoption pursuant to Section 366.24. Legal guardianship shall be considered before continuing the child in foster care under any other permanent plan, if it is in the best interests of the child and if a suitable guardian can be found. If the child continues in foster care, the court shall make factual findings identifying any barriers to achieving adoption, tribal customary adoption in the case of an Indian child, legal guardianship, or placement with a fit and willing relative as of the date of the hearing. A child who is 10 years of age or older, shall be asked to identify any individuals, other than the childs siblings, who are important to the child, in order to identify potential guardians or, in the case of an Indian child, prospective tribal customary adoptive parents. The agency may ask any other child to provide that information, as appropriate.
(B)(i)If the child is living with an approved relative who is willing and capable of providing a stable and permanent environment, but not willing to become a legal guardian as of the hearing date, the court shall order a permanent plan of placement with a fit and willing relative, and the child shall not be removed from the home if the court finds the removal would be seriously detrimental to the emotional well-being of the child because the child has substantial psychological ties to the relative caretaker.
(ii)If the child is living with a nonrelative caregiver who is willing and capable of providing a stable and permanent environment, but not willing to become a legal guardian as of the hearing date, the court shall order that the child remain in foster care with a permanent plan of return home, adoption, legal guardianship, or placement with a fit and willing relative, as appropriate. If the child is 16 years of age or older, or a nonminor dependent, and no other permanent plan is appropriate at the time of the hearing, the court may order another planned permanent living arrangement, as described in paragraph (2) of subdivision (i) of Section 16501. Regardless of the age of the child, the child shall not be removed from the home if the court finds the removal would be seriously detrimental to the emotional well-being of the child because the child has substantial psychological ties to the caregiver.
(iii)If the child is living in a group home or, on or after January 1, 2017, a short-term residential therapeutic program, the court shall order that the child remain in foster care with a permanent plan of return home, adoption, tribal customary adoption in the case of an Indian child, legal guardianship, or placement with a fit and willing relative, as appropriate. If the child is 16 years of age or older, or a nonminor dependent, and no other permanent plan is appropriate at the time of the hearing, the court may order another planned permanent living arrangement, as described in paragraph (2) of subdivision (i) of Section 16501.
(C)The court shall also make an order for visitation with the parents or guardians unless the court finds by a preponderance of the evidence that the visitation would be detrimental to the physical or emotional well-being of the child.
(5)If the court finds that the child should not be placed for adoption, that legal guardianship shall not be established, that placement with a fit and willing relative is not appropriate as of the hearing date, and that there are no suitable foster parents except certified family homes or resource families of a foster family agency available to provide the child with a stable and permanent environment, the court may order the care, custody, and control of the child transferred from the county welfare department to a licensed foster family agency. The court shall consider the written recommendation of the county welfare director regarding the suitability of the transfer. The transfer shall be subject to further court orders.
The licensed foster family agency shall place the child in a suitable licensed or certified family home that has been certified by the agency as meeting licensing standards or with a resource family approved by the agency. The licensed foster family agency shall be responsible for supporting the child and providing appropriate services to the child, including those services ordered by the court. Responsibility for the support of the child shall not, in and of itself, create liability on the part of the foster family agency to third persons injured by the child. Those children whose care, custody, and control are transferred to a foster family agency shall not be eligible for foster care maintenance payments or child welfare services, except for emergency response services pursuant to Section 16504.
(d)The proceeding for the appointment of a guardian for a child who is a dependent of the juvenile court shall be conducted in the juvenile court. If the court finds pursuant to this section that legal guardianship is the appropriate permanent plan, it shall appoint the legal guardian and issue letters of guardianship. The assessment prepared pursuant to subdivision (g) of Section 361.5, subdivision (i) of Section 366.21, subdivision (c) of Section 366.22, and subdivision (b) of Section 366.25 shall be read and considered by the court prior to the appointment, and this shall be reflected in the minutes of the court. The assessment may also include the naming of a prospective successor guardian, if one is identified. In the event of the incapacity or death of the appointed guardian, the named successor guardian may be assessed and appointed pursuant to this section. The person preparing the assessment may be called and examined by any party to the proceeding.
(e)(1)The proceeding for the adoption of a child who is a dependent of the juvenile court shall be conducted in the juvenile court if the court finds pursuant to this section that adoption is the appropriate permanent plan and the petition for adoption is filed in the juvenile court. Upon the filing of a petition for adoption, the juvenile court shall order that an adoption hearing be set. The court shall proceed with the adoption after the appellate rights of the natural parents have been exhausted. The full report required by Section 8715 of the Family Code shall be read and considered by the court prior to the adoption and this shall be reflected in the minutes of the court. The person preparing the report may be called and examined by any party to the proceeding. It is the intent of the Legislature, pursuant to this subdivision, to give potential adoptive parents the option of filing in the juvenile court the petition for the adoption of a child who is a dependent of the juvenile court. Nothing in this section is intended to prevent the filing of a petition for adoption in any other court as permitted by law, instead of in the juvenile court.
(2)In the case of an Indian child, if the Indian childs tribe has elected a permanent plan of tribal customary adoption, the court, upon receiving the tribal customary adoption order will afford the tribal customary adoption order full faith and credit to the same extent that the court would afford full faith and credit to the public acts, records, judicial proceedings, and judgments of any other entity. Upon a determination that the tribal customary adoption order may be afforded full faith and credit, consistent with Section 224.5, the court shall thereafter order a hearing to finalize the adoption be set upon the filing of the adoption petition. The prospective tribal customary adoptive parents and the child who is the subject of the tribal customary adoption petition shall appear before the court for the finalization hearing. The court shall thereafter issue an order of adoption pursuant to Section 366.24.
(3)If a child who is the subject of a finalized tribal customary adoption shows evidence of a developmental disability or mental illness as a result of conditions existing before the tribal customary adoption to the extent that the child cannot be relinquished to a licensed adoption agency on the grounds that the child is considered unadoptable, and of which condition the tribal customary adoptive parent or parents had no knowledge or notice before the entry of the tribal customary adoption order, a petition setting forth those facts may be filed by the tribal customary adoptive parent or parents with the juvenile court that granted the tribal customary adoption petition. If these facts are proved to the satisfaction of the juvenile court, it may make an order setting aside the tribal customary adoption order. The set-aside petition shall be filed within five years of the issuance of the tribal customary adoption order. The court clerk shall immediately notify the childs tribe and the department in Sacramento of the petition within 60 days after the notice of filing of the petition. The department shall file a full report with the court and shall appear before the court for the purpose of representing the child. Whenever a final decree of tribal customary adoption has been vacated or set aside, the child shall be returned to the custody of the county in which the proceeding for tribal customary adoption was finalized. The biological parent or parents of the child may petition for return of custody. The disposition of the child after the court has entered an order to set aside a tribal customary adoption shall include consultation with the childs tribe.
(f)At the beginning of any proceeding pursuant to this section, if the child or the parents are not being represented by previously retained or appointed counsel, the court shall proceed as follows:
(1)In accordance with subdivision (c) of Section 317, if a child before the court is without counsel, the court shall appoint counsel unless the court finds that the child would not benefit from the appointment of counsel. The court shall state on the record its reasons for that finding.
(2)If a parent appears without counsel and is unable to afford counsel, the court shall appoint counsel for the parent, unless this representation is knowingly and intelligently waived. The same counsel shall not be appointed to represent both the child and his or her parent. The public defender or private counsel may be appointed as counsel for the parent.
(3)Private counsel appointed under this section shall receive a reasonable sum for compensation and expenses, the amount of which shall be determined by the court. The amount shall be paid by the real parties in interest, other than the child, in any proportions the court deems just. However, if the court finds that any of the real parties in interest are unable to afford counsel, the amount shall be paid out of the general fund of the county.
(g)The court may continue the proceeding for a period of time not to exceed 30 days as necessary to appoint counsel, and to enable counsel to become acquainted with the case.
(h)(1)At all proceedings under this section, the court shall consider the wishes of the child and shall act in the best interests of the child.
(2)In accordance with Section 349, the child shall be present in court if the child or the childs counsel so requests or the court so orders. If the child is 10 years of age or older and is not present at a hearing held pursuant to this section, the court shall determine whether the minor was properly notified of his or her right to attend the hearing and inquire as to the reason why the child is not present.
(3)(A)The testimony of the child may be taken in chambers and outside the presence of the childs parent or parents, if the childs parent or parents are represented by counsel, the counsel is present, and any of the following circumstances exist:
(i)The court determines that testimony in chambers is necessary to ensure truthful testimony.
(ii)The child is likely to be intimidated by a formal courtroom setting.
(iii)The child is afraid to testify in front of his or her parent or parents.
(B)After testimony in chambers, the parent or parents of the child may elect to have the court reporter read back the testimony or have the testimony summarized by counsel for the parent or parents.
(C)The testimony of a child also may be taken in chambers and outside the presence of the guardian or guardians of a child under the circumstances specified in this subdivision.
(i)(1)Any order of the court permanently terminating parental rights under this section shall be conclusive and binding upon the child, upon the parent or parents and, upon all other persons who have been served with citation by publication or otherwise as provided in this chapter. After making the order, the juvenile court shall have no power to set aside, change, or modify it, except as provided in paragraph (2), but nothing in this section shall be construed to limit the right to appeal the order.
(2)A tribal customary adoption order evidencing that the Indian child has been the subject of a tribal customary adoption shall be afforded full faith and credit and shall have the same force and effect as an order of adoption authorized by this section. The rights and obligations of the parties as to the matters determined by the Indian childs tribe shall be binding on all parties. A court shall not order compliance with the order absent a finding that the party seeking the enforcement participated, or attempted to participate, in good faith, in family mediation services of the court or dispute resolution through the tribe regarding the conflict, prior to the filing of the enforcement action.
(3)A child who has not been adopted after the passage of at least three years from the date the court terminated parental rights and for whom the court has determined that adoption is no longer the permanent plan may petition the juvenile court to reinstate parental rights pursuant to the procedure prescribed by Section 388. The child may file the petition prior to the expiration of this three-year period if the State Department of Social Services, county adoption agency, or licensed adoption agency that is responsible for custody and supervision of the child as described in subdivision (j) and the child stipulate that the child is no longer likely to be adopted. A child over 12 years of age shall sign the petition in the absence of a showing of good cause as to why the child could not do so. If it appears that the best interests of the child may be promoted by reinstatement of parental rights, the court shall order that a hearing be held and shall give prior notice, or cause prior notice to be given, to the social worker or probation officer and to the childs attorney of record, or, if there is no attorney of record for the child, to the child, and the childs tribe, if applicable, by means prescribed by subdivision (c) of Section 297. The court shall order the child or the social worker or probation officer to give prior notice of the hearing to the childs former parent or parents whose parental rights were terminated in the manner prescribed by subdivision (f) of Section 294 where the recommendation is adoption. The juvenile court shall grant the petition if it finds by clear and convincing evidence that the child is no longer likely to be adopted and that reinstatement of parental rights is in the childs best interest. If the court reinstates parental rights over a child who is under 12 years of age and for whom the new permanent plan will not be reunification with a parent or legal guardian, the court shall specify the factual basis for its findings that it is in the best interest of the child to reinstate parental rights. This subdivision is intended to be retroactive and applies to any child who is under the jurisdiction of the juvenile court at the time of the hearing regardless of the date parental rights were terminated.
(j)If the court, by order or judgment, declares the child free from the custody and control of both parents, or one parent if the other does not have custody and control, or declares the child eligible for tribal customary adoption, the court shall at the same time order the child referred to the State Department of Social Services, county adoption agency, or licensed adoption agency for adoptive placement by the agency. However, except in the case of a tribal customary adoption where there is no termination of parental rights, a petition for adoption may not be granted until the appellate rights of the natural parents have been exhausted. The State Department of Social Services, county adoption agency, or licensed adoption agency shall be responsible for the custody and supervision of the child and shall be entitled to the exclusive care and control of the child at all times until a petition for adoption or tribal customary adoption is granted, except as specified in subdivision (n). With the consent of the agency, the court may appoint a guardian of the child, who shall serve until the child is adopted.
(k)Notwithstanding any other law, the application of any person who, as a relative caretaker or foster parent, has cared for a dependent child for whom the court has approved a permanent plan for adoption, or who has been freed for adoption, shall be given preference with respect to that child over all other applications for adoptive placement if the agency making the placement determines that the child has substantial emotional ties to the relative caretaker or foster parent and removal from the relative caretaker or foster parent would be seriously detrimental to the childs emotional well-being.
As used in this subdivision, preference means that the application shall be processed and, if satisfactory, the family study shall be completed before the processing of the application of any other person for the adoptive placement of the child.
(l)(1)An order by the court that a hearing pursuant to this section be held is not appealable at any time unless all of the following apply:
(A)A petition for extraordinary writ review was filed in a timely manner.
(B)The petition substantively addressed the specific issues to be challenged and supported that challenge by an adequate record.
(C)The petition for extraordinary writ review was summarily denied or otherwise not decided on the merits.
(2)Failure to file a petition for extraordinary writ review within the period specified by rule, to substantively address the specific issues challenged, or to support that challenge by an adequate record shall preclude subsequent review by appeal of the findings and orders made pursuant to this section.
(3)The Judicial Council shall adopt rules of court, effective January 1, 1995, to ensure all of the following:
(A)A trial court, after issuance of an order directing a hearing pursuant to this section be held, shall advise all parties of the requirement of filing a petition for extraordinary writ review as set forth in this subdivision in order to preserve any right to appeal in these issues. This notice shall be made orally to a party if the party is present at the time of the making of the order or by first-class mail by the clerk of the court to the last known address of a party not present at the time of the making of the order.
(B)The prompt transmittal of the records from the trial court to the appellate court.
(C)That adequate time requirements for counsel and court personnel exist to implement the objective of this subdivision.
(D)That the parent or guardian, or their trial counsel or other counsel, is charged with the responsibility of filing a petition for extraordinary writ relief pursuant to this subdivision.
(4)The intent of this subdivision is to do both of the following:
(A)Make every reasonable attempt to achieve a substantive and meritorious review by the appellate court within the time specified in Sections 366.21, 366.22, and 366.25 for holding a hearing pursuant to this section.
(B)Encourage the appellate court to determine all writ petitions filed pursuant to this subdivision on their merits.
(5)This subdivision shall only apply to cases in which an order to set a hearing pursuant to this section is issued on or after January 1, 1995.
(m)Except for subdivision (j), this section shall also apply to minors adjudged wards pursuant to Section 727.31.
(n)(1)Notwithstanding Section 8704 of the Family Code or any other law, the court, at a hearing held pursuant to this section or anytime thereafter, may designate a current caretaker as a prospective adoptive parent if the child has lived with the caretaker for at least six months, the caretaker currently expresses a commitment to adopt the child, and the caretaker has taken at least one step to facilitate the adoption process. In determining whether to make that designation, the court may take into consideration whether the caretaker is listed in the preliminary assessment prepared by the county department in accordance with subdivision (i) of Section 366.21 as an appropriate person to be considered as an adoptive parent for the child and the recommendation of the State Department of Social Services, county adoption agency, or licensed adoption agency.
(2)For purposes of this subdivision, steps to facilitate the adoption process include, but are not limited to, the following:
(A)Applying for an adoption homestudy.
(B)Cooperating with an adoption homestudy.
(C)Being designated by the court or the adoption agency as the adoptive family.
(D)Requesting de facto parent status.
(E)Signing an adoptive placement agreement.
(F)Engaging in discussions regarding a postadoption contact agreement.
(G)Working to overcome any impediments that have been identified by the State Department of Social Services, county adoption agency, or licensed adoption agency.
(H)Attending classes required of prospective adoptive parents.
(3)Prior to a change in placement and as soon as possible after a decision is made to remove a child from the home of a designated prospective adoptive parent, the agency shall notify the court, the designated prospective adoptive parent or the current caretaker, if that caretaker would have met the threshold criteria to be designated as a prospective adoptive parent pursuant to paragraph (1) on the date of service of this notice, the childs attorney, and the child, if the child is 10 years of age or older, of the proposal in the manner described in Section 16010.6.
(A)Within five court days or seven calendar days, whichever is longer, of the date of notification, the child, the childs attorney, or the designated prospective adoptive parent may file a petition with the court objecting to the proposal to remove the child, or the court, upon its own motion, may set a hearing regarding the proposal. The court may, for good cause, extend the filing period. A caretaker who would have met the threshold criteria to be designated as a prospective adoptive parent pursuant to paragraph (1) on the date of service of the notice of proposed removal of the child may file, together with the petition under this subparagraph, a petition for an order designating the caretaker as a prospective adoptive parent for purposes of this subdivision.
(B)A hearing ordered pursuant to this paragraph shall be held as soon as possible and not later than five court days after the petition is filed with the court or the court sets a hearing upon its own motion, unless the court for good cause is unable to set the matter for hearing five court days after the petition is filed, in which case the court shall set the matter for hearing as soon as possible. At the hearing, the court shall determine whether the caretaker has met the threshold criteria to be designated as a prospective adoptive parent pursuant to paragraph (1), and whether the proposed removal of the child from the home of the designated prospective adoptive parent is in the childs best interest, and the child may not be removed from the home of the designated prospective adoptive parent unless the court finds that removal is in the childs best interest. If the court determines that the caretaker did not meet the threshold criteria to be designated as a prospective adoptive parent on the date of service of the notice of proposed removal of the child, the petition objecting to the proposed removal filed by the caretaker shall be dismissed. If the caretaker was designated as a prospective adoptive parent prior to this hearing, the court shall inquire into any progress made by the caretaker towards the adoption of the child since the caretaker was designated as a prospective adoptive parent.
(C)A determination by the court that the caretaker is a designated prospective adoptive parent pursuant to paragraph (1) or subparagraph (B) does not make the caretaker a party to the dependency proceeding nor does it confer on the caretaker any standing to object to any other action of the department, county adoption agency, or licensed adoption agency, unless the caretaker has been declared a de facto parent by the court prior to the notice of removal served pursuant to paragraph (3).
(D)If a petition objecting to the proposal to remove the child is not filed, and the court, upon its own motion, does not set a hearing, the child may be removed from the home of the designated prospective adoptive parent without a hearing.
(4)Notwithstanding paragraph (3), if the State Department of Social Services, county adoption agency, or licensed adoption agency determines that the child must be removed from the home of the caretaker who is or may be a designated prospective adoptive parent immediately, due to a risk of physical or emotional harm, the agency may remove the child from that home and is not required to provide notice prior to the removal. However, as soon as possible and not longer than two court days after the removal, the agency shall notify the court, the caretaker who is or may be a designated prospective adoptive parent, the childs attorney, and the child, if the child is 10 years of age or older, of the removal. Within five court days or seven calendar days, whichever is longer, of the date of notification of the removal, the child, the childs attorney, or the caretaker who is or may be a designated prospective adoptive parent may petition for, or the court on its own motion may set, a noticed hearing pursuant to paragraph (3). The court may, for good cause, extend the filing period.
(5)Except as provided in subdivision (b) of Section 366.28, an order by the court issued after a hearing pursuant to this subdivision shall not be appealable.
(6)Nothing in this section shall preclude a county child protective services agency from fully investigating and responding to alleged abuse or neglect of a child pursuant to Section 11165.5 of the Penal Code.
(7)The Judicial Council shall prepare forms to facilitate the filing of the petitions described in this subdivision, which shall become effective on January 1, 2006.
SEC. 1.5.Section 366.26 of the Welfare and Institutions Code is amended to read:366.26.(a)This section applies to children who are adjudged dependent children of the juvenile court pursuant to subdivision (d) of Section 360. The procedures specified in this section are the exclusive procedures for conducting these hearings. The procedures in Part 2 (commencing with Section 3020) of Division 8 of the Family Code are not applicable to these proceedings. Section 8616.5 of the Family Code is applicable and available to all dependent children meeting the requirements of that section, if the postadoption contact agreement has been entered into voluntarily. For children who are adjudged dependent children of the juvenile court pursuant to subdivision (d) of Section 360, this section, and Sections 8604, 8605, 8606, and 8700 of the Family Code and Chapter 5 (commencing with Section 7660) of Part 3 of Division 12 of the Family Code specify the exclusive procedures for permanently terminating parental rights with regard to, or establishing legal guardianship of, the child while the child is a dependent child of the juvenile court.
(b)At the hearing, which shall be held in juvenile court for all children who are dependents of the juvenile court, the court, in order to provide stable, permanent homes for these children, shall review the report as specified in Section 361.5, 366.21, 366.22, or 366.25, shall indicate that the court has read and considered it, shall receive other evidence that the parties may present, and shall make findings and orders in the following order of preference:
(1)Terminate the rights of the parent or parents and order that the child be placed for adoption and, upon the filing of a petition for adoption in the juvenile court, order that a hearing be set. The court shall proceed with the adoption after the appellate rights of the natural parents have been exhausted.
(2)Order, without termination of parental rights, the plan of tribal customary adoption, as described in Section 366.24, through tribal custom, traditions, or law of the Indian childs tribe, and upon the court affording the tribal customary adoption order full faith and credit at the continued selection and implementation hearing, order that a hearing be set pursuant to paragraph (2) of subdivision (e).
(3)Appoint a relative or relatives with whom the child is currently residing as legal guardian or guardians for the child, and order that letters of guardianship issue.
(4)On making a finding under paragraph (3) of subdivision (c), identify adoption or tribal customary adoption as the permanent placement goal and order that efforts be made to locate an appropriate adoptive family for the child within a period not to exceed 180 days.
(5)Appoint a nonrelative legal guardian for the child and order that letters of guardianship issue.
(6)Order that the child be permanently placed with a fit and willing relative, subject to the periodic review of the juvenile court under Section 366.3.
(7)Order that the child remain in foster care, subject to the conditions described in paragraph (4) of subdivision (c) and the periodic review of the juvenile court under Section 366.3.
In choosing among the alternatives in this subdivision, the court shall proceed pursuant to subdivision (c).
(c)(1)If the court determines, based on the assessment provided as ordered under subdivision (i) of Section 366.21, subdivision (b) of Section 366.22, or subdivision (b) of Section 366.25, and any other relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. The fact that the child is not yet placed in a preadoptive home nor with a relative or foster family who is prepared to adopt the child, shall not constitute a basis for the court to conclude that it is not likely the child will be adopted. A finding under subdivision (b) or paragraph (1) of subdivision (e) of Section 361.5 that reunification services shall not be offered, under subdivision (e) of Section 366.21 that the whereabouts of a parent have been unknown for six months or that the parent has failed to visit or contact the child for six months, or that the parent has been convicted of a felony indicating parental unfitness, or, under Section 366.21 or 366.22, that the court has continued to remove the child from the custody of the parent or guardian and has terminated reunification services, shall constitute a sufficient basis for termination of parental rights. Under these circumstances, the court shall terminate parental rights unless either of the following applies:
(A)The child is living with a relative who is unable or unwilling to adopt the child because of circumstances that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment through legal guardianship, and the removal of the child from the custody of his or her relative would be detrimental to the emotional well-being of the child. For purposes of an Indian child, relative shall include an extended family member, as defined in the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1903(2)).
(B)The court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances:
(i)The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.
(ii)A child 12 years of age or older objects to termination of parental rights.
(iii)The child is placed in a residential treatment facility, adoption is unlikely or undesirable, and continuation of parental rights will not prevent finding the child a permanent family placement if the parents cannot resume custody when residential care is no longer needed.
(iv)The child is living with a foster parent or Indian custodian who is unable or unwilling to adopt the child because of exceptional circumstances, that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment and the removal of the child from the physical custody of his or her foster parent or Indian custodian would be detrimental to the emotional well-being of the child. This clause does not apply to any child who is either (I) under six years of age or (II) a member of a sibling group where at least one child is under six years of age and the siblings are, or should be, permanently placed together.
(v)There would be substantial interference with a childs sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption.
(vi)The child is an Indian child and there is a compelling reason for determining that termination of parental rights would not be in the best interest of the child, including, but not limited to:
(I)Termination of parental rights would substantially interfere with the childs connection to his or her tribal community or the childs tribal membership rights.
(II)The childs tribe has identified guardianship, foster care with a fit and willing relative, tribal customary adoption, or another planned permanent living arrangement for the child.
(III)The child is a nonminor dependent, and the nonminor and the nonminors tribe have identified tribal customary adoption for the nonminor.
(C)For purposes of subparagraph (B), in the case of tribal customary adoptions, Section 366.24 shall apply.
(D)If the court finds that termination of parental rights would be detrimental to the child pursuant to clause (i), (ii), (iii), (iv), (v), or (vi), it shall state its reasons in writing or on the record.
(2)The court shall not terminate parental rights if:
(A)At each hearing at which the court was required to consider reasonable efforts or services, the court has found that reasonable efforts were not made or that reasonable services were not offered or provided.
(B)In the case of an Indian child:
(i)At the hearing terminating parental rights, the court has found that active efforts were not made as required in Section 361.7.
(ii)The court does not make a determination at the hearing terminating parental rights, supported by evidence beyond a reasonable doubt, including testimony of one or more qualified expert witnesses as defined in Section 224.6, that the continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child.
(iii)The court has ordered tribal customary adoption pursuant to Section 366.24.
(3)If the court finds that termination of parental rights would not be detrimental to the child pursuant to paragraph (1) and that the child has a probability for adoption but is difficult to place for adoption and there is no identified or available prospective adoptive parent, the court may identify adoption as the permanent placement goal and, without terminating parental rights, order that efforts be made to locate an appropriate adoptive family for the child, within the state or out of the state, within a period not to exceed 180 days. During this 180-day period, the public agency responsible for seeking adoptive parents for each child shall, to the extent possible, ask each child who is 10 years of age or older to identify any individuals, other than the childs siblings, who are important to the child, in order to identify potential adoptive parents. The public agency may ask any other child to provide that information, as appropriate. During the 180-day period, the public agency shall, to the extent possible, contact other private and public adoption agencies regarding the availability of the child for adoption. During the 180-day period, the public agency shall conduct the search for adoptive parents in the same manner as prescribed for children in Sections 8708 and 8709 of the Family Code. At the expiration of this period, another hearing shall be held and the court shall proceed pursuant to paragraph (1), (2), (3), (5), or (6) of subdivision (b). For purposes of this section, a child may only be found to be difficult to place for adoption if there is no identified or available prospective adoptive parent for the child because of the childs membership in a sibling group, or the presence of a diagnosed medical, physical, or mental handicap, or the child is seven years of age or older.
(4)(A)If the court finds that adoption of the child or termination of parental rights is not in the best interest of the child, because one of the conditions in clause (i), (ii), (iii), (iv), (v), or (vi) of subparagraph (B) of paragraph (1) or in paragraph (2) applies, the court shall order that the present caretakers or other appropriate persons shall become legal guardians of the child, or, in the case of an Indian child, consider a tribal customary adoption pursuant to Section 366.24. Legal guardianship shall be considered before continuing the child in foster care under any other permanent plan, if it is in the best interests of the child and if a suitable guardian can be found. If the child continues in foster care, the court shall make factual findings identifying any barriers to achieving adoption, tribal customary adoption in the case of an Indian child, legal guardianship, or placement with a fit and willing relative as of the date of the hearing. A child who is 10 years of age or older, shall be asked to identify any individuals, other than the childs siblings, who are important to the child, in order to identify potential guardians or, in the case of an Indian child, prospective tribal customary adoptive parents. The agency may ask any other child to provide that information, as appropriate.
(B)(i)If the child is living with an approved relative who is willing and capable of providing a stable and permanent environment, but not willing to become a legal guardian as of the hearing date, the court shall order a permanent plan of placement with a fit and willing relative, and the child shall not be removed from the home if the court finds the removal would be seriously detrimental to the emotional well-being of the child because the child has substantial psychological ties to the relative caretaker.
(ii)If the child is living with a nonrelative caregiver who is willing and capable of providing a stable and permanent environment, but not willing to become a legal guardian as of the hearing date, the court shall order that the child remain in foster care with a permanent plan of return home, adoption, legal guardianship, or placement with a fit and willing relative, as appropriate. If the child is 16 years of age or older, or a nonminor dependent, and no other permanent plan is appropriate at the time of the hearing, the court may order another planned permanent living arrangement, as described in paragraph (2) of subdivision (i) of Section 16501. Regardless of the age of the child, the child shall not be removed from the home if the court finds the removal would be seriously detrimental to the emotional well-being of the child because the child has substantial psychological ties to the caregiver.
(iii)If the child is living in a group home or, on or after January 1, 2017, a short-term residential therapeutic program, the court shall order that the child remain in foster care with a permanent plan of return home, adoption, tribal customary adoption in the case of an Indian child, legal guardianship, or placement with a fit and willing relative, as appropriate. If the child is 16 years of age or older, or a nonminor dependent, and no other permanent plan is appropriate at the time of the hearing, the court may order another planned permanent living arrangement, as described in paragraph (2) of subdivision (i) of Section 16501.
(C)The court shall also make an order for visitation with the parents or guardians unless the court finds by a preponderance of the evidence that the visitation would be detrimental to the physical or emotional well-being of the child.
(5)If the court finds that the child should not be placed for adoption, that legal guardianship shall not be established, that placement with a fit and willing relative is not appropriate as of the hearing date, and that there are no suitable foster parents except certified family homes or resource families of a foster family agency available to provide the child with a stable and permanent environment, the court may order the care, custody, and control of the child transferred from the county welfare department to a licensed foster family agency. The court shall consider the written recommendation of the county welfare director regarding the suitability of the transfer. The transfer shall be subject to further court orders.
The licensed foster family agency shall place the child in a suitable licensed or certified family home that has been certified by the agency as meeting licensing standards or with a resource family approved by the agency. The licensed foster family agency shall be responsible for supporting the child and providing appropriate services to the child, including those services ordered by the court. Responsibility for the support of the child shall not, in and of itself, create liability on the part of the foster family agency to third persons injured by the child. Those children whose care, custody, and control are transferred to a foster family agency shall not be eligible for foster care maintenance payments or child welfare services, except for emergency response services pursuant to Section 16504.
(d)The proceeding for the appointment of a guardian for a child who is a dependent of the juvenile court shall be conducted in the juvenile court. If the court finds pursuant to this section that legal guardianship is the appropriate permanent plan, it shall appoint the legal guardian and issue letters of guardianship. The assessment prepared pursuant to subdivision (g) of Section 361.5, subdivision (i) of Section 366.21, subdivision (c) of Section 366.22, and subdivision (b) of Section 366.25 shall be read and considered by the court prior to the appointment, and this shall be reflected in the minutes of the court. Such assessment may also include the naming of a prospective successor guardian, if one is identified. In the event of the incapacity or death of the appointed guardian, the named successor guardian may be assessed and appointed pursuant to this section. The person preparing the assessment may be called and examined by any party to the proceeding.
(e)(1)The proceeding for the adoption of a child who is a dependent of the juvenile court shall be conducted in the juvenile court if the court finds pursuant to this section that adoption is the appropriate permanent plan and the petition for adoption is filed in the juvenile court. Upon the filing of a petition for adoption, the juvenile court shall order that an adoption hearing be set. The court shall proceed with the adoption after the appellate rights of the natural parents have been exhausted. The full report required by Section 8715 of the Family Code shall be read and considered by the court prior to the adoption and this shall be reflected in the minutes of the court. The person preparing the report may be called and examined by any party to the proceeding. It is the intent of the Legislature, pursuant to this subdivision, to give potential adoptive parents the option of filing in the juvenile court the petition for the adoption of a child who is a dependent of the juvenile court. Nothing in this section is intended to prevent the filing of a petition for adoption in any other court as permitted by law, instead of in the juvenile court.
(2)In the case of an Indian child, if the Indian childs tribe has elected a permanent plan of tribal customary adoption, the court, upon receiving the tribal customary adoption order will afford the tribal customary adoption order full faith and credit to the same extent that the court would afford full faith and credit to the public acts, records, judicial proceedings, and judgments of any other entity. Upon a determination that the tribal customary adoption order may be afforded full faith and credit, consistent with Section 224.5, the court shall thereafter order a hearing to finalize the adoption be set upon the filing of the adoption petition. The prospective tribal customary adoptive parents and the child who is the subject of the tribal customary adoption petition shall appear before the court for the finalization hearing. The court shall thereafter issue an order of adoption pursuant to Section 366.24.
(3)If a child who is the subject of a finalized tribal customary adoption shows evidence of a developmental disability or mental illness as a result of conditions existing before the tribal customary adoption to the extent that the child cannot be relinquished to a licensed adoption agency on the grounds that the child is considered unadoptable, and of which condition the tribal customary adoptive parent or parents had no knowledge or notice before the entry of the tribal customary adoption order, a petition setting forth those facts may be filed by the tribal customary adoptive parent or parents with the juvenile court that granted the tribal customary adoption petition. If these facts are proved to the satisfaction of the juvenile court, it may make an order setting aside the tribal customary adoption order. The set-aside petition shall be filed within five years of the issuance of the tribal customary adoption order. The court clerk shall immediately notify the childs tribe and the department in Sacramento of the petition within 60 days after the notice of filing of the petition. The department shall file a full report with the court and shall appear before the court for the purpose of representing the child. Whenever a final decree of tribal customary adoption has been vacated or set aside, the child shall be returned to the custody of the county in which the proceeding for tribal customary adoption was finalized. The biological parent or parents of the child may petition for return of custody. The disposition of the child after the court has entered an order to set aside a tribal customary adoption shall include consultation with the childs tribe.
(f)At the beginning of any proceeding pursuant to this section, if the child or the parents are not being represented by previously retained or appointed counsel, the court shall proceed as follows:
(1)In accordance with subdivision (c) of Section 317, if a child before the court is without counsel, the court shall appoint counsel unless the court finds that the child would not benefit from the appointment of counsel. The court shall state on the record its reasons for that finding.
(2)If a parent appears without counsel and is unable to afford counsel, the court shall appoint counsel for the parent, unless this representation is knowingly and intelligently waived. The same counsel shall not be appointed to represent both the child and his or her parent. The public defender or private counsel may be appointed as counsel for the parent.
(3)Private counsel appointed under this section shall receive a reasonable sum for compensation and expenses, the amount of which shall be determined by the court. The amount shall be paid by the real parties in interest, other than the child, in any proportions the court deems just. However, if the court finds that any of the real parties in interest are unable to afford counsel, the amount shall be paid out of the general fund of the county.
(g)The court may continue the proceeding for a period of time not to exceed 30 days as necessary to appoint counsel, and to enable counsel to become acquainted with the case.
(h)(1)At all proceedings under this section, the court shall consider the wishes of the child and shall act in the best interests of the child.
(2)In accordance with Section 349, the child shall be present in court if the child or the childs counsel so requests or the court so orders. If the child is 10 years of age or older and is not present at a hearing held pursuant to this section, the court shall determine whether the minor was properly notified of his or her right to attend the hearing and inquire as to the reason why the child is not present.
(3)(A)The testimony of the child may be taken in chambers and outside the presence of the childs parent or parents, if the childs parent or parents are represented by counsel, the counsel is present, and any of the following circumstances exist:
(i)The court determines that testimony in chambers is necessary to ensure truthful testimony.
(ii)The child is likely to be intimidated by a formal courtroom setting.
(iii)The child is afraid to testify in front of his or her parent or parents.
(B)After testimony in chambers, the parent or parents of the child may elect to have the court reporter read back the testimony or have the testimony summarized by counsel for the parent or parents.
(C)The testimony of a child also may be taken in chambers and outside the presence of the guardian or guardians of a child under the circumstances specified in this subdivision.
(i)(1)Any order of the court permanently terminating parental rights under this section shall be conclusive and binding upon the child, upon the parent or parents and, upon all other persons who have been served with citation by publication or otherwise as provided in this chapter. After making the order, the juvenile court shall have no power to set aside, change, or modify it, except as provided in paragraph (2), but nothing in this section shall be construed to limit the right to appeal the order.
(2)A tribal customary adoption order evidencing that the Indian child has been the subject of a tribal customary adoption shall be afforded full faith and credit and shall have the same force and effect as an order of adoption authorized by this section. The rights and obligations of the parties as to the matters determined by the Indian childs tribe shall be binding on all parties. A court shall not order compliance with the order absent a finding that the party seeking the enforcement participated, or attempted to participate, in good faith, in family mediation services of the court or dispute resolution through the tribe regarding the conflict, prior to the filing of the enforcement action.
(3)A child who has not been adopted after the passage of at least three years from the date the court terminated parental rights and for whom the court has determined that adoption is no longer the permanent plan may petition the juvenile court to reinstate parental rights pursuant to the procedure prescribed by Section 388. The child may file the petition prior to the expiration of this three-year period if the State Department of Social Services, county adoption agency, or licensed adoption agency that is responsible for custody and supervision of the child as described in subdivision (j) and the child stipulate that the child is no longer likely to be adopted. A child over 12 years of age shall sign the petition in the absence of a showing of good cause as to why the child could not do so. If it appears that the best interests of the child may be promoted by reinstatement of parental rights, the court shall order that a hearing be held and shall give prior notice, or cause prior notice to be given, to the social worker or probation officer and to the childs attorney of record, or, if there is no attorney of record for the child, to the child, and the childs tribe, if applicable, by means prescribed by subdivision (c) of Section 297. The court shall order the child or the social worker or probation officer to give prior notice of the hearing to the childs former parent or parents whose parental rights were terminated in the manner prescribed by subdivision (f) of Section 294 where the recommendation is adoption. The juvenile court shall grant the petition if it finds by clear and convincing evidence that the child is no longer likely to be adopted and that reinstatement of parental rights is in the childs best interest. If the court reinstates parental rights over a child who is under 12 years of age and for whom the new permanent plan will not be reunification with a parent or legal guardian, the court shall specify the factual basis for its findings that it is in the best interest of the child to reinstate parental rights. This subdivision is intended to be retroactive and applies to any child who is under the jurisdiction of the juvenile court at the time of the hearing regardless of the date parental rights were terminated.
(j)If the court, by order or judgment, declares the child free from the custody and control of both parents, or one parent if the other does not have custody and control, or declares the child eligible for tribal customary adoption, the court shall at the same time order the child referred to the State Department of Social Services, county adoption agency, or licensed adoption agency for adoptive placement by the agency. However, except in the case of a tribal customary adoption where there is no termination of parental rights, a petition for adoption may not be granted until the appellate rights of the natural parents have been exhausted. The State Department of Social Services, county adoption agency, or licensed adoption agency shall be responsible for the custody and supervision of the child and shall be entitled to the exclusive care and control of the child at all times until a petition for adoption or tribal customary adoption is granted, except as specified in subdivision (n). With the consent of the agency, the court may appoint a guardian of the child, who shall serve until the child is adopted.
(k)(1)Notwithstanding any other law, the application of any person who, as a relative caretaker or foster parent, has cared for a dependent child for whom the court has approved a permanent plan for adoption, or who has been freed for adoption, shall be given preference with respect to that child over all other applications for adoptive placement if the agency making the placement determines that the child has substantial emotional ties to the relative caretaker or foster parent and removal from the relative caretaker or foster parent would be seriously detrimental to the childs emotional well-being.
(2)As used in this subdivision, preference means that the application shall be processed and, if satisfactory, the family study shall be completed before the processing of the application of any other person for the adoptive placement of the child.
(l)(1)An order by the court that a hearing pursuant to this section be held is not appealable at any time unless all of the following apply:
(A)A petition for extraordinary writ review was filed in a timely manner.
(B)The petition substantively addressed the specific issues to be challenged and supported that challenge by an adequate record.
(C)The petition for extraordinary writ review was summarily denied or otherwise not decided on the merits.
(2)Failure to file a petition for extraordinary writ review within the period specified by rule, to substantively address the specific issues challenged, or to support that challenge by an adequate record shall preclude subsequent review by appeal of the findings and orders made pursuant to this section.
(3)The Judicial Council shall adopt rules of court, effective January 1, 1995, to ensure all of the following:
(A)A trial court, after issuance of an order directing a hearing pursuant to this section be held, shall advise all parties of the requirement of filing a petition for extraordinary writ review as set forth in this subdivision in order to preserve any right to appeal in these issues.
(i)If a party is present at the time of the making of the order, the notice shall be made orally to the party.
(ii)If the party is not present at the time of making the order, the notice shall be made by the clerk of the court by first-class mail to the last known address of a party or by electronic service pursuant to Section 212.5. If the notice is for a hearing at which the social worker will recommend the termination of parental rights, the notice may be electronically served pursuant to Section 212.5, but only in addition to service of the notice by first-class mail.
(B)The prompt transmittal of the records from the trial court to the appellate court.
(C)That adequate time requirements for counsel and court personnel exist to implement the objective of this subdivision.
(D)That the parent or guardian, or their trial counsel or other counsel, is charged with the responsibility of filing a petition for extraordinary writ relief pursuant to this subdivision.
(4)The intent of this subdivision is to do both of the following:
(A)Make every reasonable attempt to achieve a substantive and meritorious review by the appellate court within the time specified in Sections 366.21, 366.22, and 366.25 for holding a hearing pursuant to this section.
(B)Encourage the appellate court to determine all writ petitions filed pursuant to this subdivision on their merits.
(5)This subdivision shall only apply to cases in which an order to set a hearing pursuant to this section is issued on or after January 1, 1995.
(m)Except for subdivision (j), this section shall also apply to minors adjudged wards pursuant to Section 727.31.
(n)(1)Notwithstanding Section 8704 of the Family Code or any other law, the court, at a hearing held pursuant to this section or anytime thereafter, may designate a current caretaker as a prospective adoptive parent if the child has lived with the caretaker for at least six months, the caretaker currently expresses a commitment to adopt the child, and the caretaker has taken at least one step to facilitate the adoption process. In determining whether to make that designation, the court may take into consideration whether the caretaker is listed in the preliminary assessment prepared by the county department in accordance with subdivision (i) of Section 366.21 as an appropriate person to be considered as an adoptive parent for the child and the recommendation of the State Department of Social Services, county adoption agency, or licensed adoption agency.
(2)For purposes of this subdivision, steps to facilitate the adoption process include, but are not limited to, the following:
(A)Applying for an adoption homestudy.
(B)Cooperating with an adoption homestudy.
(C)Being designated by the court or the adoption agency as the adoptive family.
(D)Requesting de facto parent status.
(E)Signing an adoptive placement agreement.
(F)Engaging in discussions regarding a postadoption contact agreement.
(G)Working to overcome any impediments that have been identified by the State Department of Social Services, county adoption agency, or licensed adoption agency.
(H)Attending classes required of prospective adoptive parents.
(3)Prior to a change in placement and as soon as possible after a decision is made to remove a child from the home of a designated prospective adoptive parent, the agency shall notify the court, the designated prospective adoptive parent or the current caretaker, if that caretaker would have met the threshold criteria to be designated as a prospective adoptive parent pursuant to paragraph (1) on the date of service of this notice, the childs attorney, and the child, if the child is 10 years of age or older, of the proposal in the manner described in Section 16010.6.
(A)Within five court days or seven calendar days, whichever is longer, of the date of notification, the child, the childs attorney, or the designated prospective adoptive parent may file a petition with the court objecting to the proposal to remove the child, or the court, upon its own motion, may set a hearing regarding the proposal. The court may, for good cause, extend the filing period. A caretaker who would have met the threshold criteria to be designated as a prospective adoptive parent pursuant to paragraph (1) on the date of service of the notice of proposed removal of the child may file, together with the petition under this subparagraph, a petition for an order designating the caretaker as a prospective adoptive parent for purposes of this subdivision.
(B)A hearing ordered pursuant to this paragraph shall be held as soon as possible and not later than five court days after the petition is filed with the court or the court sets a hearing upon its own motion, unless the court for good cause is unable to set the matter for hearing five court days after the petition is filed, in which case the court shall set the matter for hearing as soon as possible. At the hearing, the court shall determine whether the caretaker has met the threshold criteria to be designated as a prospective adoptive parent pursuant to paragraph (1), and whether the proposed removal of the child from the home of the designated prospective adoptive parent is in the childs best interest, and the child may not be removed from the home of the designated prospective adoptive parent unless the court finds that removal is in the childs best interest. If the court determines that the caretaker did not meet the threshold criteria to be designated as a prospective adoptive parent on the date of service of the notice of proposed removal of the child, the petition objecting to the proposed removal filed by the caretaker shall be dismissed. If the caretaker was designated as a prospective adoptive parent prior to this hearing, the court shall inquire into any progress made by the caretaker towards the adoption of the child since the caretaker was designated as a prospective adoptive parent.
(C)A determination by the court that the caretaker is a designated prospective adoptive parent pursuant to paragraph (1) or subparagraph (B) does not make the caretaker a party to the dependency proceeding nor does it confer on the caretaker any standing to object to any other action of the department, county adoption agency, or licensed adoption agency, unless the caretaker has been declared a de facto parent by the court prior to the notice of removal served pursuant to paragraph (3).
(D)If a petition objecting to the proposal to remove the child is not filed, and the court, upon its own motion, does not set a hearing, the child may be removed from the home of the designated prospective adoptive parent without a hearing.
(4)Notwithstanding paragraph (3), if the State Department of Social Services, county adoption agency, or licensed adoption agency determines that the child must be removed from the home of the caretaker who is or may be a designated prospective adoptive parent immediately, due to a risk of physical or emotional harm, the agency may remove the child from that home and is not required to provide notice prior to the removal. However, as soon as possible and not longer than two court days after the removal, the agency shall notify the court, the caretaker who is or may be a designated prospective adoptive parent, the childs attorney, and the child, if the child is 10 years of age or older, of the removal. Within five court days or seven calendar days, whichever is longer, of the date of notification of the removal, the child, the childs attorney, or the caretaker who is or may be a designated prospective adoptive parent may petition for, or the court on its own motion may set, a noticed hearing pursuant to paragraph (3). The court may, for good cause, extend the filing period.
(5)Except as provided in subdivision (b) of Section 366.28, an order by the court issued after a hearing pursuant to this subdivision shall not be appealable.
(6)Nothing in this section shall preclude a county child protective services agency from fully investigating and responding to alleged abuse or neglect of a child pursuant to Section 11165.5 of the Penal Code.
(7)The Judicial Council shall prepare forms to facilitate the filing of the petitions described in this subdivision, which shall become effective on January 1, 2006.
SEC. 2.Section 1.5 of this bill incorporates amendments to Section 366.26 of the Welfare and Institutions Code proposed by both this bill and Assembly Bill 976. That section shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2018, (2) each bill amends Section 366.26 of the Welfare and Institutions Code, and (3) this bill is enacted after Assembly Bill 976, in which case Section 1 of this bill shall not become operative.
(a)This section applies to children who are adjudged dependent children of the juvenile court pursuant to subdivision (d) of Section 360. The procedures specified herein in this section are the exclusive procedures for conducting these hearings; hearings. The procedures in Part 2 (commencing with Section 3020) of Division 8 of the Family Code is are not applicable to these proceedings. Section 8616.5 of the Family Code is applicable and available to all dependent children meeting the requirements of that section, if the postadoption contact agreement has been entered into voluntarily. For children who are adjudged dependent children of the juvenile court pursuant to subdivision (d) of Section 360, this section section, and Sections 8604, 8605, 8606, and 8700 of the Family Code and Chapter 5 (commencing with Section 7660) of Part 3 of Division 12 of the Family Code specify the exclusive procedures for permanently terminating parental rights with regard to, or establishing legal guardianship of, the child while the child is a dependent child of the juvenile court.
(b)At the hearing, which shall be held in juvenile court for all children who are dependents of the juvenile court, the court, in order to provide stable, permanent homes for these children, shall review the report as specified in Section 361.5, 366.21, 366.22, or 366.25, shall indicate that the court has read and considered it, shall receive other evidence that the parties may present, and then shall make findings and orders in the following order of preference:
(1)Terminate the rights of the parent or parents and order that the child be placed for adoption and, upon the filing of a petition for adoption in the juvenile court, order that a hearing be set. The court shall proceed with the adoption after the appellate rights of the natural parents have been exhausted.
(2)Order, without termination of parental rights, the plan of tribal customary adoption, as described in Section 366.24, through tribal custom, traditions, or law of the Indian childs tribe, and upon the court affording the tribal customary adoption order full faith and credit at the continued selection and implementation hearing, order that a hearing be set pursuant to paragraph (2) of subdivision (e).
(3)Appoint a relative or relatives with whom the child is currently residing as legal guardian or guardians for the child, and order that letters of guardianship issue.
(4)On making a finding under paragraph (3) of subdivision (c), identify adoption or tribal customary adoption as the permanent placement goal and order that efforts be made to locate an appropriate adoptive family for the child within a period not to exceed 180 days.
(5)Appoint a nonrelative legal guardian for the child and order that letters of guardianship issue.
(6)Order that the child be permanently placed with a fit and willing relative, subject to the periodic review of the juvenile court under Section 366.3.
(7)Order that the child remain in foster care, subject to the conditions described in paragraph (4) of subdivision (c) and the periodic review of the juvenile court under Section 366.3.
In choosing among the above alternatives in this subdivision, the court shall proceed pursuant to subdivision (c).
(c)(1)If the court determines, based on the assessment provided as ordered under subdivision (i) of Section 366.21, subdivision (b) of Section 366.22, or subdivision (b) of Section 366.25, and any other relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. The fact that the child is not yet placed in a preadoptive home nor with a relative or foster family who is prepared to adopt the child, shall not constitute a basis for the court to conclude that it is not likely the child will be adopted. A finding under subdivision (b) or paragraph (1) of subdivision (e) of Section 361.5 that reunification services shall not be offered, under subdivision (e) of Section 366.21 that the whereabouts of a parent have been unknown for six months or that the parent has failed to visit or contact the child for six months, or that the parent has been convicted of a felony indicating parental unfitness, or, under Section 366.21 or 366.22, that the court has continued to remove the child from the custody of the parent or guardian and has terminated reunification services, shall constitute a sufficient basis for termination of parental rights. Under these circumstances, the court shall terminate parental rights unless either of the following applies:
(A)The child is living with a relative who is unable or unwilling to adopt the child because of circumstances that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment through legal guardianship, and the removal of the child from the custody of his or her relative would be detrimental to the emotional well-being of the child. For purposes of an Indian child, relative shall include an extended family member, as defined in the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1903(2)).
(B)The court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances:
(i)The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.
(ii)A child 12 years of age or older objects to termination of parental rights.
(iii)The child is placed in a residential treatment facility, adoption is unlikely or undesirable, and continuation of parental rights will not prevent finding the child a permanent family placement if the parents cannot resume custody when residential care is no longer needed.
(iv)The child is living with a foster parent or Indian custodian who is unable or unwilling to adopt the child because of exceptional circumstances, that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment and the removal of the child from the physical custody of his or her foster parent or Indian custodian would be detrimental to the emotional well-being of the child. This clause does not apply to any child who is either (I) under six years of age or (II) a member of a sibling group where at least one child is under six years of age and the siblings are, or should be, permanently placed together.
(v)There would be substantial interference with a childs sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption.
(vi)The child is an Indian child and there is a compelling reason for determining that termination of parental rights would not be in the best interest of the child, including, but not limited to:
(I)Termination of parental rights would substantially interfere with the childs connection to his or her tribal community or the childs tribal membership rights.
(II)The childs tribe has identified guardianship, foster care with a fit and willing relative, tribal customary adoption, or another planned permanent living arrangement for the child.
(III)The child is a nonminor dependent, and the nonminor and the nonminors tribe have identified tribal customary adoption for the nonminor.
(C)For purposes of subparagraph (B), in the case of tribal customary adoptions, Section 366.24 shall apply.
(D)If the court finds that termination of parental rights would be detrimental to the child pursuant to clause (i), (ii), (iii), (iv), (v), or (vi), it shall state its reasons in writing or on the record.
(2)The court shall not terminate parental rights if:
(A)At each hearing at which the court was required to consider reasonable efforts or services, the court has found that reasonable efforts were not made or that reasonable services were not offered or provided.
(B)In the case of an Indian child:
(i)At the hearing terminating parental rights, the court has found that active efforts were not made as required in Section 361.7.
(ii)The court does not make a determination at the hearing terminating parental rights, supported by evidence beyond a reasonable doubt, including testimony of one or more qualified expert witnesses as defined in Section 224.6, that the continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child.
(iii)The court has ordered tribal customary adoption pursuant to Section 366.24.
(3)If the court finds that termination of parental rights would not be detrimental to the child pursuant to paragraph (1) and that the child has a probability for adoption but is difficult to place for adoption and there is no identified or available prospective adoptive parent, the court may identify adoption as the permanent placement goal and, without terminating parental rights, order that efforts be made to locate an appropriate adoptive family for the child, within the state or out of the state, within a period not to exceed 180 days. During this 180-day period, the public agency responsible for seeking adoptive parents for each child shall, to the extent possible, ask each child who is 10 years of age or older to identify any individuals, other than the childs siblings, who are important to the child, in order to identify potential adoptive parents. The public agency may ask any other child to provide that information, as appropriate. During the 180-day period, the public agency shall, to the extent possible, contact other private and public adoption agencies regarding the availability of the child for adoption. During the 180-day period, the public agency shall conduct the search for adoptive parents in the same manner as prescribed for children in Sections 8708 and 8709 of the Family Code. At the expiration of this period, another hearing shall be held and the court shall proceed pursuant to paragraph (1), (2), (3), (5), or (6) of subdivision (b). For purposes of this section, a child may only be found to be difficult to place for adoption if there is no identified or available prospective adoptive parent for the child because of the childs membership in a sibling group, or the presence of a diagnosed medical, physical, or mental handicap, or the child is seven years of age or older.
(4)(A)If the court finds that adoption of the child or termination of parental rights is not in the best interest of the child, because one of the conditions in clause (i), (ii), (iii), (iv), (v), or (vi) of subparagraph (B) of paragraph (1) or in paragraph (2) applies, the court shall order that the present caretakers or other appropriate persons shall become legal guardians of the child, or, in the case of an Indian child, consider a tribal customary adoption pursuant to Section 366.24. Legal guardianship shall be considered before continuing the child in foster care under any other permanent plan, if it is in the best interests of the child and if a suitable guardian can be found. If the child continues in foster care, the court shall make factual findings identifying any barriers to achieving adoption, tribal customary adoption in the case of an Indian child, legal guardianship, or placement with a fit and willing relative as of the date of the hearing. A child who is 10 years of age or older, shall be asked to identify any individuals, other than the childs siblings, who are important to the child, in order to identify potential guardians or, in the case of an Indian child, prospective tribal customary adoptive parents. The agency may ask any other child to provide that information, as appropriate.
(B)(i)If the child is living with an approved relative who is willing and capable of providing a stable and permanent environment, but not willing to become a legal guardian as of the hearing date, the court shall order a permanent plan of placement with a fit and willing relative, and the child shall not be removed from the home if the court finds the removal would be seriously detrimental to the emotional well-being of the child because the child has substantial psychological ties to the relative caretaker.
(ii)If the child is living with a nonrelative caregiver who is willing and capable of providing a stable and permanent environment, but not willing to become a legal guardian as of the hearing date, the court shall order that the child remain in foster care with a permanent plan of return home, adoption, legal guardianship, or placement with a fit and willing relative, as appropriate. If the child is 16 years of age or older, or a nonminor dependent, and no other permanent plan is appropriate at the time of the hearing, the court may order another planned permanent living arrangement, as described in paragraph (2) of subdivision (i) of Section 16501. Regardless of the age of the child, the child shall not be removed from the home if the court finds the removal would be seriously detrimental to the emotional well-being of the child because the child has substantial psychological ties to the caregiver.
(iii)If the child is living in a group home or, on or after January 1, 2017, a short-term residential therapeutic program, the court shall order that the child remain in foster care with a permanent plan of return home, adoption, tribal customary adoption in the case of an Indian child, legal guardianship, or placement with a fit and willing relative, as appropriate. If the child is 16 years of age or older, or a nonminor dependent, and no other permanent plan is appropriate at the time of the hearing, the court may order another planned permanent living arrangement, as described in paragraph (2) of subdivision (i) of Section 16501.
(C)The court shall also make an order for visitation with the parents or guardians unless the court finds by a preponderance of the evidence that the visitation would be detrimental to the physical or emotional well-being of the child.
(5)If the court finds that the child should not be placed for adoption, that legal guardianship shall not be established, that placement with a fit and willing relative is not appropriate as of the hearing date, and that there are no suitable foster parents except certified family homes or resource families of a foster family agency available to provide the child with a stable and permanent environment, the court may order the care, custody, and control of the child transferred from the county welfare department to a licensed foster family agency. The court shall consider the written recommendation of the county welfare director regarding the suitability of the transfer. The transfer shall be subject to further court orders.
The licensed foster family agency shall place the child in a suitable licensed or certified family home that has been certified by the agency as meeting licensing standards or with a resource family approved by the agency. The licensed foster family agency shall be responsible for supporting the child and providing appropriate services to the child, including those services ordered by the court. Responsibility for the support of the child shall not, in and of itself, create liability on the part of the foster family agency to third persons injured by the child. Those children whose care, custody, and control are transferred to a foster family agency shall not be eligible for foster care maintenance payments or child welfare services, except for emergency response services pursuant to Section 16504.
(d)The proceeding for the appointment of a guardian for a child who is a dependent of the juvenile court shall be conducted in the juvenile court. If the court finds pursuant to this section that legal guardianship is the appropriate permanent plan, it shall appoint the legal guardian and issue letters of guardianship. The assessment prepared pursuant to subdivision (g) of Section 361.5, subdivision (i) of Section 366.21, subdivision (b) (c) of Section 366.22, and subdivision (b) of Section 366.25 shall be read and considered by the court prior to the appointment, and this shall be reflected in the minutes of the court. The assessment may also include the naming of a prospective successor guardian, if one is identified. In the event of the incapacity or death of the appointed guardian, the named successor guardian may be assessed and appointed pursuant to this section. The person preparing the assessment may be called and examined by any party to the proceeding.
(e)(1)The proceeding for the adoption of a child who is a dependent of the juvenile court shall be conducted in the juvenile court if the court finds pursuant to this section that adoption is the appropriate permanent plan and the petition for adoption is filed in the juvenile court. Upon the filing of a petition for adoption, the juvenile court shall order that an adoption hearing be set. The court shall proceed with the adoption after the appellate rights of the natural parents have been exhausted. The full report required by Section 8715 of the Family Code shall be read and considered by the court prior to the adoption and this shall be reflected in the minutes of the court. The person preparing the report may be called and examined by any party to the proceeding. It is the intent of the Legislature, pursuant to this subdivision, to give potential adoptive parents the option of filing in the juvenile court the petition for the adoption of a child who is a dependent of the juvenile court. Nothing in this section is intended to prevent the filing of a petition for adoption in any other court as permitted by law, instead of in the juvenile court.
(2)In the case of an Indian child, if the Indian childs tribe has elected a permanent plan of tribal customary adoption, the court, upon receiving the tribal customary adoption order will afford the tribal customary adoption order full faith and credit to the same extent that the court would afford full faith and credit to the public acts, records, judicial proceedings, and judgments of any other entity. Upon a determination that the tribal customary adoption order may be afforded full faith and credit, consistent with Section 224.5, the court shall thereafter order a hearing to finalize the adoption be set upon the filing of the adoption petition. The prospective tribal customary adoptive parents and the child who is the subject of the tribal customary adoption petition shall appear before the court for the finalization hearing. The court shall thereafter issue an order of adoption pursuant to Section 366.24.
(3)If a child who is the subject of a finalized tribal customary adoption shows evidence of a developmental disability or mental illness as a result of conditions existing before the tribal customary adoption to the extent that the child cannot be relinquished to a licensed adoption agency on the grounds that the child is considered unadoptable, and of which condition the tribal customary adoptive parent or parents had no knowledge or notice before the entry of the tribal customary adoption order, a petition setting forth those facts may be filed by the tribal customary adoptive parent or parents with the juvenile court that granted the tribal customary adoption petition. If these facts are proved to the satisfaction of the juvenile court, it may make an order setting aside the tribal customary adoption order. The set-aside petition shall be filed within five years of the issuance of the tribal customary adoption order. The court clerk shall immediately notify the childs tribe and the department in Sacramento of the petition within 60 days after the notice of filing of the petition. The department shall file a full report with the court and shall appear before the court for the purpose of representing the child. Whenever a final decree of tribal customary adoption has been vacated or set aside, the child shall be returned to the custody of the county in which the proceeding for tribal customary adoption was finalized. The biological parent or parents of the child may petition for return of custody. The disposition of the child after the court has entered an order to set aside a tribal customary adoption shall include consultation with the childs tribe.
(f)At the beginning of any proceeding pursuant to this section, if the child or the parents are not being represented by previously retained or appointed counsel, the court shall proceed as follows:
(1)In accordance with subdivision (c) of Section 317, if a child before the court is without counsel, the court shall appoint counsel unless the court finds that the child would not benefit from the appointment of counsel. The court shall state on the record its reasons for that finding.
(2)If a parent appears without counsel and is unable to afford counsel, the court shall appoint counsel for the parent, unless this representation is knowingly and intelligently waived. The same counsel shall not be appointed to represent both the child and his or her parent. The public defender or private counsel may be appointed as counsel for the parent.
(3)Private counsel appointed under this section shall receive a reasonable sum for compensation and expenses, the amount of which shall be determined by the court. The amount shall be paid by the real parties in interest, other than the child, in any proportions the court deems just. However, if the court finds that any of the real parties in interest are unable to afford counsel, the amount shall be paid out of the general fund of the county.
(g)The court may continue the proceeding for a period of time not to exceed 30 days as necessary to appoint counsel, and to enable counsel to become acquainted with the case.
(h)(1)At all proceedings under this section, the court shall consider the wishes of the child and shall act in the best interests of the child.
(2)In accordance with Section 349, the child shall be present in court if the child or the childs counsel so requests or the court so orders. If the child is 10 years of age or older and is not present at a hearing held pursuant to this section, the court shall determine whether the minor was properly notified of his or her right to attend the hearing and inquire as to the reason why the child is not present.
(3)(A)The testimony of the child may be taken in chambers and outside the presence of the childs parent or parents, if the childs parent or parents are represented by counsel, the counsel is present, and any of the following circumstances exist:
(i)The court determines that testimony in chambers is necessary to ensure truthful testimony.
(ii)The child is likely to be intimidated by a formal courtroom setting.
(iii)The child is afraid to testify in front of his or her parent or parents.
(B)After testimony in chambers, the parent or parents of the child may elect to have the court reporter read back the testimony or have the testimony summarized by counsel for the parent or parents.
(C)The testimony of a child also may be taken in chambers and outside the presence of the guardian or guardians of a child under the circumstances specified in this subdivision.
(i)(1)Any order of the court permanently terminating parental rights under this section shall be conclusive and binding upon the child, upon the parent or parents and, upon all other persons who have been served with citation by publication or otherwise as provided in this chapter. After making the order, the juvenile court shall have no power to set aside, change, or modify it, except as provided in paragraph (2), but nothing in this section shall be construed to limit the right to appeal the order.
(2)A tribal customary adoption order evidencing that the Indian child has been the subject of a tribal customary adoption shall be afforded full faith and credit and shall have the same force and effect as an order of adoption authorized by this section. The rights and obligations of the parties as to the matters determined by the Indian childs tribe shall be binding on all parties. A court shall not order compliance with the order absent a finding that the party seeking the enforcement participated, or attempted to participate, in good faith, in family mediation services of the court or dispute resolution through the tribe regarding the conflict, prior to the filing of the enforcement action.
(3)A child who has not been adopted after the passage of at least three years from the date the court terminated parental rights and for whom the court has determined that adoption is no longer the permanent plan may petition the juvenile court to reinstate parental rights pursuant to the procedure prescribed by Section 388. The child may file the petition prior to the expiration of this three-year period if the State Department of Social Services, county adoption agency, or licensed adoption agency that is responsible for custody and supervision of the child as described in subdivision (j) and the child stipulate that the child is no longer likely to be adopted. A child over 12 years of age shall sign the petition in the absence of a showing of good cause as to why the child could not do so. If it appears that the best interests of the child may be promoted by reinstatement of parental rights, the court shall order that a hearing be held and shall give prior notice, or cause prior notice to be given, to the social worker or probation officer and to the childs attorney of record, or, if there is no attorney of record for the child, to the child, and the childs tribe, if applicable, by means prescribed by subdivision (c) of Section 297. The court shall order the child or the social worker or probation officer to give prior notice of the hearing to the childs former parent or parents whose parental rights were terminated in the manner prescribed by subdivision (f) of Section 294 where the recommendation is adoption. The juvenile court shall grant the petition if it finds by clear and convincing evidence that the child is no longer likely to be adopted and that reinstatement of parental rights is in the childs best interest. If the court reinstates parental rights over a child who is under 12 years of age and for whom the new permanent plan will not be reunification with a parent or legal guardian, the court shall specify the factual basis for its findings that it is in the best interest of the child to reinstate parental rights. This subdivision is intended to be retroactive and applies to any child who is under the jurisdiction of the juvenile court at the time of the hearing regardless of the date parental rights were terminated.
(j)If the court, by order or judgment, declares the child free from the custody and control of both parents, or one parent if the other does not have custody and control, or declares the child eligible for tribal customary adoption, the court shall at the same time order the child referred to the State Department of Social Services, county adoption agency, or licensed adoption agency for adoptive placement by the agency. However, except in the case of a tribal customary adoption where there is no termination of parental rights, a petition for adoption may not be granted until the appellate rights of the natural parents have been exhausted. The State Department of Social Services, county adoption agency, or licensed adoption agency shall be responsible for the custody and supervision of the child and shall be entitled to the exclusive care and control of the child at all times until a petition for adoption or tribal customary adoption is granted, except as specified in subdivision (n). With the consent of the agency, the court may appoint a guardian of the child, who shall serve until the child is adopted.
(k)Notwithstanding any other law, the application of any person who, as a relative caretaker or foster parent, has cared for a dependent child for whom the court has approved a permanent plan for adoption, or who has been freed for adoption, shall be given preference with respect to that child over all other applications for adoptive placement if the agency making the placement determines that the child has substantial emotional ties to the relative caretaker or foster parent and removal from the relative caretaker or foster parent would be seriously detrimental to the childs emotional well-being.
As used in this subdivision, preference means that the application shall be processed and, if satisfactory, the family study shall be completed before the processing of the application of any other person for the adoptive placement of the child.
(l)(1)An order by the court that a hearing pursuant to this section be held is not appealable at any time unless all of the following apply:
(A)A petition for extraordinary writ review was filed in a timely manner.
(B)The petition substantively addressed the specific issues to be challenged and supported that challenge by an adequate record.
(C)The petition for extraordinary writ review was summarily denied or otherwise not decided on the merits.
(2)Failure to file a petition for extraordinary writ review within the period specified by rule, to substantively address the specific issues challenged, or to support that challenge by an adequate record shall preclude subsequent review by appeal of the findings and orders made pursuant to this section.
(3)The Judicial Council shall adopt rules of court, effective January 1, 1995, to ensure all of the following:
(A)A trial court, after issuance of an order directing a hearing pursuant to this section be held, shall advise all parties of the requirement of filing a petition for extraordinary writ review as set forth in this subdivision in order to preserve any right to appeal in these issues. This notice shall be made orally to a party if the party is present at the time of the making of the order or by first-class mail by the clerk of the court to the last known address of a party not present at the time of the making of the order.
(B)The prompt transmittal of the records from the trial court to the appellate court.
(C)That adequate time requirements for counsel and court personnel exist to implement the objective of this subdivision.
(D)That the parent or guardian, or their trial counsel or other counsel, is charged with the responsibility of filing a petition for extraordinary writ relief pursuant to this subdivision.
(4)The intent of this subdivision is to do both of the following:
(A)Make every reasonable attempt to achieve a substantive and meritorious review by the appellate court within the time specified in Sections 366.21, 366.22, and 366.25 for holding a hearing pursuant to this section.
(B)Encourage the appellate court to determine all writ petitions filed pursuant to this subdivision on their merits.
(5)This subdivision shall only apply to cases in which an order to set a hearing pursuant to this section is issued on or after January 1, 1995.
(m)Except for subdivision (j), this section shall also apply to minors adjudged wards pursuant to Section 727.31.
(n)(1)Notwithstanding Section 8704 of the Family Code or any other law, the court, at a hearing held pursuant to this section or anytime thereafter, may designate a current caretaker as a prospective adoptive parent if the child has lived with the caretaker for at least six months, the caretaker currently expresses a commitment to adopt the child, and the caretaker has taken at least one step to facilitate the adoption process. In determining whether to make that designation, the court may take into consideration whether the caretaker is listed in the preliminary assessment prepared by the county department in accordance with subdivision (i) of Section 366.21 as an appropriate person to be considered as an adoptive parent for the child and the recommendation of the State Department of Social Services, county adoption agency, or licensed adoption agency.
(2)For purposes of this subdivision, steps to facilitate the adoption process include, but are not limited to, the following:
(A)Applying for an adoption homestudy.
(B)Cooperating with an adoption homestudy.
(C)Being designated by the court or the adoption agency as the adoptive family.
(D)Requesting de facto parent status.
(E)Signing an adoptive placement agreement.
(F)Engaging in discussions regarding a postadoption contact agreement.
(G)Working to overcome any impediments that have been identified by the State Department of Social Services, county adoption agency, or licensed adoption agency.
(H)Attending classes required of prospective adoptive parents.
(3)Prior to a change in placement and as soon as possible after a decision is made to remove a child from the home of a designated prospective adoptive parent, the agency shall notify the court, the designated prospective adoptive parent or the current caretaker, if that caretaker would have met the threshold criteria to be designated as a prospective adoptive parent pursuant to paragraph (1) on the date of service of this notice, the childs attorney, and the child, if the child is 10 years of age or older, of the proposal in the manner described in Section 16010.6.
(A)Within five court days or seven calendar days, whichever is longer, of the date of notification, the child, the childs attorney, or the designated prospective adoptive parent may file a petition with the court objecting to the proposal to remove the child, or the court, upon its own motion, may set a hearing regarding the proposal. The court may, for good cause, extend the filing period. A caretaker who would have met the threshold criteria to be designated as a prospective adoptive parent pursuant to paragraph (1) on the date of service of the notice of proposed removal of the child may file, together with the petition under this subparagraph, a petition for an order designating the caretaker as a prospective adoptive parent for purposes of this subdivision.
(B)A hearing ordered pursuant to this paragraph shall be held as soon as possible and not later than five court days after the petition is filed with the court or the court sets a hearing upon its own motion, unless the court for good cause is unable to set the matter for hearing five court days after the petition is filed, in which case the court shall set the matter for hearing as soon as possible. At the hearing, the court shall determine whether the caretaker has met the threshold criteria to be designated as a prospective adoptive parent pursuant to paragraph (1), and whether the proposed removal of the child from the home of the designated prospective adoptive parent is in the childs best interest, and the child may not be removed from the home of the designated prospective adoptive parent unless the court finds that removal is in the childs best interest. If the court determines that the caretaker did not meet the threshold criteria to be designated as a prospective adoptive parent on the date of service of the notice of proposed removal of the child, the petition objecting to the proposed removal filed by the caretaker shall be dismissed. If the caretaker was designated as a prospective adoptive parent prior to this hearing, the court shall inquire into any progress made by the caretaker towards the adoption of the child since the caretaker was designated as a prospective adoptive parent.
(C)A determination by the court that the caretaker is a designated prospective adoptive parent pursuant to paragraph (1) or subparagraph (B) does not make the caretaker a party to the dependency proceeding nor does it confer on the caretaker any standing to object to any other action of the department, county adoption agency, or licensed adoption agency, unless the caretaker has been declared a de facto parent by the court prior to the notice of removal served pursuant to paragraph (3).
(D)If a petition objecting to the proposal to remove the child is not filed, and the court, upon its own motion, does not set a hearing, the child may be removed from the home of the designated prospective adoptive parent without a hearing.
(4)Notwithstanding paragraph (3), if the State Department of Social Services, county adoption agency, or licensed adoption agency determines that the child must be removed from the home of the caretaker who is or may be a designated prospective adoptive parent immediately, due to a risk of physical or emotional harm, the agency may remove the child from that home and is not required to provide notice prior to the removal. However, as soon as possible and not longer than two court days after the removal, the agency shall notify the court, the caretaker who is or may be a designated prospective adoptive parent, the childs attorney, and the child, if the child is 10 years of age or older, of the removal. Within five court days or seven calendar days, whichever is longer, of the date of notification of the removal, the child, the childs attorney, or the caretaker who is or may be a designated prospective adoptive parent may petition for, or the court on its own motion may set, a noticed hearing pursuant to paragraph (3). The court may, for good cause, extend the filing period.
(5)Except as provided in subdivision (b) of Section 366.28, an order by the court issued after a hearing pursuant to this subdivision shall not be appealable.
(6)Nothing in this section shall preclude a county child protective services agency from fully investigating and responding to alleged abuse or neglect of a child pursuant to Section 11165.5 of the Penal Code.
(7)The Judicial Council shall prepare forms to facilitate the filing of the petitions described in this subdivision, which shall become effective on January 1, 2006.
SEC. 1.5.Section 366.26 of the Welfare and Institutions Code is amended to read:366.26.(a)This section applies to children who are adjudged dependent children of the juvenile court pursuant to subdivision (d) of Section 360. The procedures specified herein in this section are the exclusive procedures for conducting these hearings; hearings. The procedures in Part 2 (commencing with Section 3020) of Division 8 of the Family Code is are not applicable to these proceedings. Section 8616.5 of the Family Code is applicable and available to all dependent children meeting the requirements of that section, if the postadoption contact agreement has been entered into voluntarily. For children who are adjudged dependent children of the juvenile court pursuant to subdivision (d) of Section 360, this section section, and Sections 8604, 8605, 8606, and 8700 of the Family Code and Chapter 5 (commencing with Section 7660) of Part 3 of Division 12 of the Family Code specify the exclusive procedures for permanently terminating parental rights with regard to, or establishing legal guardianship of, the child while the child is a dependent child of the juvenile court.
(b)At the hearing, which shall be held in juvenile court for all children who are dependents of the juvenile court, the court, in order to provide stable, permanent homes for these children, shall review the report as specified in Section 361.5, 366.21, 366.22, or 366.25, shall indicate that the court has read and considered it, shall receive other evidence that the parties may present, and then shall make findings and orders in the following order of preference:
(1)Terminate the rights of the parent or parents and order that the child be placed for adoption and, upon the filing of a petition for adoption in the juvenile court, order that a hearing be set. The court shall proceed with the adoption after the appellate rights of the natural parents have been exhausted.
(2)Order, without termination of parental rights, the plan of tribal customary adoption, as described in Section 366.24, through tribal custom, traditions, or law of the Indian childs tribe, and upon the court affording the tribal customary adoption order full faith and credit at the continued selection and implementation hearing, order that a hearing be set pursuant to paragraph (2) of subdivision (e).
(3)Appoint a relative or relatives with whom the child is currently residing as legal guardian or guardians for the child, and order that letters of guardianship issue.
(4)On making a finding under paragraph (3) of subdivision (c), identify adoption or tribal customary adoption as the permanent placement goal and order that efforts be made to locate an appropriate adoptive family for the child within a period not to exceed 180 days.
(5)Appoint a nonrelative legal guardian for the child and order that letters of guardianship issue.
(6)Order that the child be permanently placed with a fit and willing relative, subject to the periodic review of the juvenile court under Section 366.3.
(7)Order that the child remain in foster care, subject to the conditions described in paragraph (4) of subdivision (c) and the periodic review of the juvenile court under Section 366.3.
In choosing among the above alternatives in this subdivision, the court shall proceed pursuant to subdivision (c).
(c)(1)If the court determines, based on the assessment provided as ordered under subdivision (i) of Section 366.21, subdivision (b) of Section 366.22, or subdivision (b) of Section 366.25, and any other relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. The fact that the child is not yet placed in a preadoptive home nor with a relative or foster family who is prepared to adopt the child, shall not constitute a basis for the court to conclude that it is not likely the child will be adopted. A finding under subdivision (b) or paragraph (1) of subdivision (e) of Section 361.5 that reunification services shall not be offered, under subdivision (e) of Section 366.21 that the whereabouts of a parent have been unknown for six months or that the parent has failed to visit or contact the child for six months, or that the parent has been convicted of a felony indicating parental unfitness, or, under Section 366.21 or 366.22, that the court has continued to remove the child from the custody of the parent or guardian and has terminated reunification services, shall constitute a sufficient basis for termination of parental rights. Under these circumstances, the court shall terminate parental rights unless either of the following applies:
(A)The child is living with a relative who is unable or unwilling to adopt the child because of circumstances that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment through legal guardianship, and the removal of the child from the custody of his or her relative would be detrimental to the emotional well-being of the child. For purposes of an Indian child, relative shall include an extended family member, as defined in the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1903(2)).
(B)The court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances:
(i)The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.
(ii)A child 12 years of age or older objects to termination of parental rights.
(iii)The child is placed in a residential treatment facility, adoption is unlikely or undesirable, and continuation of parental rights will not prevent finding the child a permanent family placement if the parents cannot resume custody when residential care is no longer needed.
(iv)The child is living with a foster parent or Indian custodian who is unable or unwilling to adopt the child because of exceptional circumstances, that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment and the removal of the child from the physical custody of his or her foster parent or Indian custodian would be detrimental to the emotional well-being of the child. This clause does not apply to any child who is either (I) under six years of age or (II) a member of a sibling group where at least one child is under six years of age and the siblings are, or should be, permanently placed together.
(v)There would be substantial interference with a childs sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption.
(vi)The child is an Indian child and there is a compelling reason for determining that termination of parental rights would not be in the best interest of the child, including, but not limited to:
(I)Termination of parental rights would substantially interfere with the childs connection to his or her tribal community or the childs tribal membership rights.
(II)The childs tribe has identified guardianship, foster care with a fit and willing relative, tribal customary adoption, or another planned permanent living arrangement for the child.
(III)The child is a nonminor dependent, and the nonminor and the nonminors tribe have identified tribal customary adoption for the nonminor.
(C)For purposes of subparagraph (B), in the case of tribal customary adoptions, Section 366.24 shall apply.
(D)If the court finds that termination of parental rights would be detrimental to the child pursuant to clause (i), (ii), (iii), (iv), (v), or (vi), it shall state its reasons in writing or on the record.
(2)The court shall not terminate parental rights if:
(A)At each hearing at which the court was required to consider reasonable efforts or services, the court has found that reasonable efforts were not made or that reasonable services were not offered or provided.
(B)In the case of an Indian child:
(i)At the hearing terminating parental rights, the court has found that active efforts were not made as required in Section 361.7.
(ii)The court does not make a determination at the hearing terminating parental rights, supported by evidence beyond a reasonable doubt, including testimony of one or more qualified expert witnesses as defined in Section 224.6, that the continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child.
(iii)The court has ordered tribal customary adoption pursuant to Section 366.24.
(3)If the court finds that termination of parental rights would not be detrimental to the child pursuant to paragraph (1) and that the child has a probability for adoption but is difficult to place for adoption and there is no identified or available prospective adoptive parent, the court may identify adoption as the permanent placement goal and, without terminating parental rights, order that efforts be made to locate an appropriate adoptive family for the child, within the state or out of the state, within a period not to exceed 180 days. During this 180-day period, the public agency responsible for seeking adoptive parents for each child shall, to the extent possible, ask each child who is 10 years of age or older to identify any individuals, other than the childs siblings, who are important to the child, in order to identify potential adoptive parents. The public agency may ask any other child to provide that information, as appropriate. During the 180-day period, the public agency shall, to the extent possible, contact other private and public adoption agencies regarding the availability of the child for adoption. During the 180-day period, the public agency shall conduct the search for adoptive parents in the same manner as prescribed for children in Sections 8708 and 8709 of the Family Code. At the expiration of this period, another hearing shall be held and the court shall proceed pursuant to paragraph (1), (2), (3), (5), or (6) of subdivision (b). For purposes of this section, a child may only be found to be difficult to place for adoption if there is no identified or available prospective adoptive parent for the child because of the childs membership in a sibling group, or the presence of a diagnosed medical, physical, or mental handicap, or the child is seven years of age or older.
(4)(A)If the court finds that adoption of the child or termination of parental rights is not in the best interest of the child, because one of the conditions in clause (i), (ii), (iii), (iv), (v), or (vi) of subparagraph (B) of paragraph (1) or in paragraph (2) applies, the court shall order that the present caretakers or other appropriate persons shall become legal guardians of the child, or, in the case of an Indian child, consider a tribal customary adoption pursuant to Section 366.24. Legal guardianship shall be considered before continuing the child in foster care under any other permanent plan, if it is in the best interests of the child and if a suitable guardian can be found. If the child continues in foster care, the court shall make factual findings identifying any barriers to achieving adoption, tribal customary adoption in the case of an Indian child, legal guardianship, or placement with a fit and willing relative as of the date of the hearing. A child who is 10 years of age or older, shall be asked to identify any individuals, other than the childs siblings, who are important to the child, in order to identify potential guardians or, in the case of an Indian child, prospective tribal customary adoptive parents. The agency may ask any other child to provide that information, as appropriate.
(B)(i)If the child is living with an approved relative who is willing and capable of providing a stable and permanent environment, but not willing to become a legal guardian as of the hearing date, the court shall order a permanent plan of placement with a fit and willing relative, and the child shall not be removed from the home if the court finds the removal would be seriously detrimental to the emotional well-being of the child because the child has substantial psychological ties to the relative caretaker.
(ii)If the child is living with a nonrelative caregiver who is willing and capable of providing a stable and permanent environment, but not willing to become a legal guardian as of the hearing date, the court shall order that the child remain in foster care with a permanent plan of return home, adoption, legal guardianship, or placement with a fit and willing relative, as appropriate. If the child is 16 years of age or older, or a nonminor dependent, and no other permanent plan is appropriate at the time of the hearing, the court may order another planned permanent living arrangement, as described in paragraph (2) of subdivision (i) of Section 16501. Regardless of the age of the child, the child shall not be removed from the home if the court finds the removal would be seriously detrimental to the emotional well-being of the child because the child has substantial psychological ties to the caregiver.
(iii)If the child is living in a group home or, on or after January 1, 2017, a short-term residential therapeutic program, the court shall order that the child remain in foster care with a permanent plan of return home, adoption, tribal customary adoption in the case of an Indian child, legal guardianship, or placement with a fit and willing relative, as appropriate. If the child is 16 years of age or older, or a nonminor dependent, and no other permanent plan is appropriate at the time of the hearing, the court may order another planned permanent living arrangement, as described in paragraph (2) of subdivision (i) of Section 16501.
(C)The court shall also make an order for visitation with the parents or guardians unless the court finds by a preponderance of the evidence that the visitation would be detrimental to the physical or emotional well-being of the child.
(5)If the court finds that the child should not be placed for adoption, that legal guardianship shall not be established, that placement with a fit and willing relative is not appropriate as of the hearing date, and that there are no suitable foster parents except certified family homes or resource families of a foster family agency available to provide the child with a stable and permanent environment, the court may order the care, custody, and control of the child transferred from the county welfare department to a licensed foster family agency. The court shall consider the written recommendation of the county welfare director regarding the suitability of the transfer. The transfer shall be subject to further court orders.
The licensed foster family agency shall place the child in a suitable licensed or certified family home that has been certified by the agency as meeting licensing standards or with a resource family approved by the agency. The licensed foster family agency shall be responsible for supporting the child and providing appropriate services to the child, including those services ordered by the court. Responsibility for the support of the child shall not, in and of itself, create liability on the part of the foster family agency to third persons injured by the child. Those children whose care, custody, and control are transferred to a foster family agency shall not be eligible for foster care maintenance payments or child welfare services, except for emergency response services pursuant to Section 16504.
(d)The proceeding for the appointment of a guardian for a child who is a dependent of the juvenile court shall be conducted in the juvenile court. If the court finds pursuant to this section that legal guardianship is the appropriate permanent plan, it shall appoint the legal guardian and issue letters of guardianship. The assessment prepared pursuant to subdivision (g) of Section 361.5, subdivision (i) of Section 366.21, subdivision (b) (c) of Section 366.22, and subdivision (b) of Section 366.25 shall be read and considered by the court prior to the appointment, and this shall be reflected in the minutes of the court. Such assessment may also include the naming of a prospective successor guardian, if one is identified. In the event of the incapacity or death of the appointed guardian, the named successor guardian may be assessed and appointed pursuant to this section. The person preparing the assessment may be called and examined by any party to the proceeding.
(e)(1)The proceeding for the adoption of a child who is a dependent of the juvenile court shall be conducted in the juvenile court if the court finds pursuant to this section that adoption is the appropriate permanent plan and the petition for adoption is filed in the juvenile court. Upon the filing of a petition for adoption, the juvenile court shall order that an adoption hearing be set. The court shall proceed with the adoption after the appellate rights of the natural parents have been exhausted. The full report required by Section 8715 of the Family Code shall be read and considered by the court prior to the adoption and this shall be reflected in the minutes of the court. The person preparing the report may be called and examined by any party to the proceeding. It is the intent of the Legislature, pursuant to this subdivision, to give potential adoptive parents the option of filing in the juvenile court the petition for the adoption of a child who is a dependent of the juvenile court. Nothing in this section is intended to prevent the filing of a petition for adoption in any other court as permitted by law, instead of in the juvenile court.
(2)In the case of an Indian child, if the Indian childs tribe has elected a permanent plan of tribal customary adoption, the court, upon receiving the tribal customary adoption order will afford the tribal customary adoption order full faith and credit to the same extent that the court would afford full faith and credit to the public acts, records, judicial proceedings, and judgments of any other entity. Upon a determination that the tribal customary adoption order may be afforded full faith and credit, consistent with Section 224.5, the court shall thereafter order a hearing to finalize the adoption be set upon the filing of the adoption petition. The prospective tribal customary adoptive parents and the child who is the subject of the tribal customary adoption petition shall appear before the court for the finalization hearing. The court shall thereafter issue an order of adoption pursuant to Section 366.24.
(3)If a child who is the subject of a finalized tribal customary adoption shows evidence of a developmental disability or mental illness as a result of conditions existing before the tribal customary adoption to the extent that the child cannot be relinquished to a licensed adoption agency on the grounds that the child is considered unadoptable, and of which condition the tribal customary adoptive parent or parents had no knowledge or notice before the entry of the tribal customary adoption order, a petition setting forth those facts may be filed by the tribal customary adoptive parent or parents with the juvenile court that granted the tribal customary adoption petition. If these facts are proved to the satisfaction of the juvenile court, it may make an order setting aside the tribal customary adoption order. The set-aside petition shall be filed within five years of the issuance of the tribal customary adoption order. The court clerk shall immediately notify the childs tribe and the department in Sacramento of the petition within 60 days after the notice of filing of the petition. The department shall file a full report with the court and shall appear before the court for the purpose of representing the child. Whenever a final decree of tribal customary adoption has been vacated or set aside, the child shall be returned to the custody of the county in which the proceeding for tribal customary adoption was finalized. The biological parent or parents of the child may petition for return of custody. The disposition of the child after the court has entered an order to set aside a tribal customary adoption shall include consultation with the childs tribe.
(f)At the beginning of any proceeding pursuant to this section, if the child or the parents are not being represented by previously retained or appointed counsel, the court shall proceed as follows:
(1)In accordance with subdivision (c) of Section 317, if a child before the court is without counsel, the court shall appoint counsel unless the court finds that the child would not benefit from the appointment of counsel. The court shall state on the record its reasons for that finding.
(2)If a parent appears without counsel and is unable to afford counsel, the court shall appoint counsel for the parent, unless this representation is knowingly and intelligently waived. The same counsel shall not be appointed to represent both the child and his or her parent. The public defender or private counsel may be appointed as counsel for the parent.
(3)Private counsel appointed under this section shall receive a reasonable sum for compensation and expenses, the amount of which shall be determined by the court. The amount shall be paid by the real parties in interest, other than the child, in any proportions the court deems just. However, if the court finds that any of the real parties in interest are unable to afford counsel, the amount shall be paid out of the general fund of the county.
(g)The court may continue the proceeding for a period of time not to exceed 30 days as necessary to appoint counsel, and to enable counsel to become acquainted with the case.
(h)(1)At all proceedings under this section, the court shall consider the wishes of the child and shall act in the best interests of the child.
(2)In accordance with Section 349, the child shall be present in court if the child or the childs counsel so requests or the court so orders. If the child is 10 years of age or older and is not present at a hearing held pursuant to this section, the court shall determine whether the minor was properly notified of his or her right to attend the hearing and inquire as to the reason why the child is not present.
(3)(A)The testimony of the child may be taken in chambers and outside the presence of the childs parent or parents, if the childs parent or parents are represented by counsel, the counsel is present, and any of the following circumstances exist:
(i)The court determines that testimony in chambers is necessary to ensure truthful testimony.
(ii)The child is likely to be intimidated by a formal courtroom setting.
(iii)The child is afraid to testify in front of his or her parent or parents.
(B)After testimony in chambers, the parent or parents of the child may elect to have the court reporter read back the testimony or have the testimony summarized by counsel for the parent or parents.
(C)The testimony of a child also may be taken in chambers and outside the presence of the guardian or guardians of a child under the circumstances specified in this subdivision.
(i)(1)Any order of the court permanently terminating parental rights under this section shall be conclusive and binding upon the child, upon the parent or parents and, upon all other persons who have been served with citation by publication or otherwise as provided in this chapter. After making the order, the juvenile court shall have no power to set aside, change, or modify it, except as provided in paragraph (2), but nothing in this section shall be construed to limit the right to appeal the order.
(2)A tribal customary adoption order evidencing that the Indian child has been the subject of a tribal customary adoption shall be afforded full faith and credit and shall have the same force and effect as an order of adoption authorized by this section. The rights and obligations of the parties as to the matters determined by the Indian childs tribe shall be binding on all parties. A court shall not order compliance with the order absent a finding that the party seeking the enforcement participated, or attempted to participate, in good faith, in family mediation services of the court or dispute resolution through the tribe regarding the conflict, prior to the filing of the enforcement action.
(3)A child who has not been adopted after the passage of at least three years from the date the court terminated parental rights and for whom the court has determined that adoption is no longer the permanent plan may petition the juvenile court to reinstate parental rights pursuant to the procedure prescribed by Section 388. The child may file the petition prior to the expiration of this three-year period if the State Department of Social Services, county adoption agency, or licensed adoption agency that is responsible for custody and supervision of the child as described in subdivision (j) and the child stipulate that the child is no longer likely to be adopted. A child over 12 years of age shall sign the petition in the absence of a showing of good cause as to why the child could not do so. If it appears that the best interests of the child may be promoted by reinstatement of parental rights, the court shall order that a hearing be held and shall give prior notice, or cause prior notice to be given, to the social worker or probation officer and to the childs attorney of record, or, if there is no attorney of record for the child, to the child, and the childs tribe, if applicable, by means prescribed by subdivision (c) of Section 297. The court shall order the child or the social worker or probation officer to give prior notice of the hearing to the childs former parent or parents whose parental rights were terminated in the manner prescribed by subdivision (f) of Section 294 where the recommendation is adoption. The juvenile court shall grant the petition if it finds by clear and convincing evidence that the child is no longer likely to be adopted and that reinstatement of parental rights is in the childs best interest. If the court reinstates parental rights over a child who is under 12 years of age and for whom the new permanent plan will not be reunification with a parent or legal guardian, the court shall specify the factual basis for its findings that it is in the best interest of the child to reinstate parental rights. This subdivision is intended to be retroactive and applies to any child who is under the jurisdiction of the juvenile court at the time of the hearing regardless of the date parental rights were terminated.
(j)If the court, by order or judgment, declares the child free from the custody and control of both parents, or one parent if the other does not have custody and control, or declares the child eligible for tribal customary adoption, the court shall at the same time order the child referred to the State Department of Social Services, county adoption agency, or licensed adoption agency for adoptive placement by the agency. However, except in the case of a tribal customary adoption where there is no termination of parental rights, a petition for adoption may not be granted until the appellate rights of the natural parents have been exhausted. The State Department of Social Services, county adoption agency, or licensed adoption agency shall be responsible for the custody and supervision of the child and shall be entitled to the exclusive care and control of the child at all times until a petition for adoption or tribal customary adoption is granted, except as specified in subdivision (n). With the consent of the agency, the court may appoint a guardian of the child, who shall serve until the child is adopted.
(k)(1)Notwithstanding any other law, the application of any person who, as a relative caretaker or foster parent, has cared for a dependent child for whom the court has approved a permanent plan for adoption, or who has been freed for adoption, shall be given preference with respect to that child over all other applications for adoptive placement if the agency making the placement determines that the child has substantial emotional ties to the relative caretaker or foster parent and removal from the relative caretaker or foster parent would be seriously detrimental to the childs emotional well-being.
As(2)As used in this subdivision, preference means that the application shall be processed and, if satisfactory, the family study shall be completed before the processing of the application of any other person for the adoptive placement of the child.
(l)(1)An order by the court that a hearing pursuant to this section be held is not appealable at any time unless all of the following apply:
(A)A petition for extraordinary writ review was filed in a timely manner.
(B)The petition substantively addressed the specific issues to be challenged and supported that challenge by an adequate record.
(C)The petition for extraordinary writ review was summarily denied or otherwise not decided on the merits.
(2)Failure to file a petition for extraordinary writ review within the period specified by rule, to substantively address the specific issues challenged, or to support that challenge by an adequate record shall preclude subsequent review by appeal of the findings and orders made pursuant to this section.
(3)The Judicial Council shall adopt rules of court, effective January 1, 1995, to ensure all of the following:
(A)A trial court, after issuance of an order directing a hearing pursuant to this section be held, shall advise all parties of the requirement of filing a petition for extraordinary writ review as set forth in this subdivision in order to preserve any right to appeal in these issues. This notice shall be made orally to a party if the party is present at the time of the making of the order or by first-class mail by the clerk of the court to the last known address of a party not present at the time of the making of the order.
(i)If a party is present at the time of the making of the order, the notice shall be made orally to the party.
(ii)If the party is not present at the time of making the order, the notice shall be made by the clerk of the court by first-class mail to the last known address of a party or by electronic service pursuant to Section 212.5. If the notice is for a hearing at which the social worker will recommend the termination of parental rights, the notice may be electronically served pursuant to Section 212.5, but only in addition to service of the notice by first-class mail.
(B)The prompt transmittal of the records from the trial court to the appellate court.
(C)That adequate time requirements for counsel and court personnel exist to implement the objective of this subdivision.
(D)That the parent or guardian, or their trial counsel or other counsel, is charged with the responsibility of filing a petition for extraordinary writ relief pursuant to this subdivision.
(4)The intent of this subdivision is to do both of the following:
(A)Make every reasonable attempt to achieve a substantive and meritorious review by the appellate court within the time specified in Sections 366.21, 366.22, and 366.25 for holding a hearing pursuant to this section.
(B)Encourage the appellate court to determine all writ petitions filed pursuant to this subdivision on their merits.
(5)This subdivision shall only apply to cases in which an order to set a hearing pursuant to this section is issued on or after January 1, 1995.
(m)Except for subdivision (j), this section shall also apply to minors adjudged wards pursuant to Section 727.31.
(n)(1)Notwithstanding Section 8704 of the Family Code or any other law, the court, at a hearing held pursuant to this section or anytime thereafter, may designate a current caretaker as a prospective adoptive parent if the child has lived with the caretaker for at least six months, the caretaker currently expresses a commitment to adopt the child, and the caretaker has taken at least one step to facilitate the adoption process. In determining whether to make that designation, the court may take into consideration whether the caretaker is listed in the preliminary assessment prepared by the county department in accordance with subdivision (i) of Section 366.21 as an appropriate person to be considered as an adoptive parent for the child and the recommendation of the State Department of Social Services, county adoption agency, or licensed adoption agency.
(2)For purposes of this subdivision, steps to facilitate the adoption process include, but are not limited to, the following:
(A)Applying for an adoption homestudy.
(B)Cooperating with an adoption homestudy.
(C)Being designated by the court or the adoption agency as the adoptive family.
(D)Requesting de facto parent status.
(E)Signing an adoptive placement agreement.
(F)Engaging in discussions regarding a postadoption contact agreement.
(G)Working to overcome any impediments that have been identified by the State Department of Social Services, county adoption agency, or licensed adoption agency.
(H)Attending classes required of prospective adoptive parents.
(3)Prior to a change in placement and as soon as possible after a decision is made to remove a child from the home of a designated prospective adoptive parent, the agency shall notify the court, the designated prospective adoptive parent or the current caretaker, if that caretaker would have met the threshold criteria to be designated as a prospective adoptive parent pursuant to paragraph (1) on the date of service of this notice, the childs attorney, and the child, if the child is 10 years of age or older, of the proposal in the manner described in Section 16010.6.
(A)Within five court days or seven calendar days, whichever is longer, of the date of notification, the child, the childs attorney, or the designated prospective adoptive parent may file a petition with the court objecting to the proposal to remove the child, or the court, upon its own motion, may set a hearing regarding the proposal. The court may, for good cause, extend the filing period. A caretaker who would have met the threshold criteria to be designated as a prospective adoptive parent pursuant to paragraph (1) on the date of service of the notice of proposed removal of the child may file, together with the petition under this subparagraph, a petition for an order designating the caretaker as a prospective adoptive parent for purposes of this subdivision.
(B)A hearing ordered pursuant to this paragraph shall be held as soon as possible and not later than five court days after the petition is filed with the court or the court sets a hearing upon its own motion, unless the court for good cause is unable to set the matter for hearing five court days after the petition is filed, in which case the court shall set the matter for hearing as soon as possible. At the hearing, the court shall determine whether the caretaker has met the threshold criteria to be designated as a prospective adoptive parent pursuant to paragraph (1), and whether the proposed removal of the child from the home of the designated prospective adoptive parent is in the childs best interest, and the child may not be removed from the home of the designated prospective adoptive parent unless the court finds that removal is in the childs best interest. If the court determines that the caretaker did not meet the threshold criteria to be designated as a prospective adoptive parent on the date of service of the notice of proposed removal of the child, the petition objecting to the proposed removal filed by the caretaker shall be dismissed. If the caretaker was designated as a prospective adoptive parent prior to this hearing, the court shall inquire into any progress made by the caretaker towards the adoption of the child since the caretaker was designated as a prospective adoptive parent.
(C)A determination by the court that the caretaker is a designated prospective adoptive parent pursuant to paragraph (1) or subparagraph (B) does not make the caretaker a party to the dependency proceeding nor does it confer on the caretaker any standing to object to any other action of the department, county adoption agency, or licensed adoption agency, unless the caretaker has been declared a de facto parent by the court prior to the notice of removal served pursuant to paragraph (3).
(D)If a petition objecting to the proposal to remove the child is not filed, and the court, upon its own motion, does not set a hearing, the child may be removed from the home of the designated prospective adoptive parent without a hearing.
(4)Notwithstanding paragraph (3), if the State Department of Social Services, county adoption agency, or licensed adoption agency determines that the child must be removed from the home of the caretaker who is or may be a designated prospective adoptive parent immediately, due to a risk of physical or emotional harm, the agency may remove the child from that home and is not required to provide notice prior to the removal. However, as soon as possible and not longer than two court days after the removal, the agency shall notify the court, the caretaker who is or may be a designated prospective adoptive parent, the childs attorney, and the child, if the child is 10 years of age or older, of the removal. Within five court days or seven calendar days, whichever is longer, of the date of notification of the removal, the child, the childs attorney, or the caretaker who is or may be a designated prospective adoptive parent may petition for, or the court on its own motion may set, a noticed hearing pursuant to paragraph (3). The court may, for good cause, extend the filing period.
(5)Except as provided in subdivision (b) of Section 366.28, an order by the court issued after a hearing pursuant to this subdivision shall not be appealable.
(6)Nothing in this section shall preclude a county child protective services agency from fully investigating and responding to alleged abuse or neglect of a child pursuant to Section 11165.5 of the Penal Code.
(7)The Judicial Council shall prepare forms to facilitate the filing of the petitions described in this subdivision, which shall become effective on January 1, 2006.
SEC. 2.Section 1.5 of this bill incorporates amendments to Section 366.26 of the Welfare and Institutions Code proposed by both this bill and Assembly Bill 976. That section shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2018, (2) each bill amends Section 366.26 of the Welfare and Institutions Code, and (3) this bill is enacted after Assembly Bill 976, in which case Section 1 of this bill shall not become operative.
SECTION 1.Section 360 of the Welfare and Institutions Code is amended to read:360.After receiving and considering the evidence on the proper disposition of the case, the juvenile court may enter judgment as follows:(a)(1)Notwithstanding any other law, if the court finds that the child is a person described by Section 300 and the parent has advised the court that the parent is not interested in family maintenance or family reunification services, it may, in addition to or in lieu of adjudicating the child a dependent child of the court, order a legal guardianship, appoint a legal guardian, and issue letters of guardianship, if the court determines that a guardianship is in the best interest of the child, provided the parent and the child agree to the guardianship, unless the childs age or physical, emotional, or mental condition prevents the childs meaningful response. The court shall advise the parent and the child that no reunification services will be provided as a result of the establishment of a guardianship. The proceeding for the appointment of a guardian shall be in the juvenile court.(2)Any application for termination of guardianship shall be filed in juvenile court in a form as may be developed by the Judicial Council pursuant to Section 68511 of the Government Code. Sections 366.4 and 388 shall apply to this order of guardianship.(3)(A)A person shall not be appointed a legal guardian under this section until an assessment as specified in subdivision (g) of Section 361.5 is read and considered by the court and reflected in the minutes of the court. The court may consider any plan for a successor guardian submitted to the court.(B)In the event of the incapacity or death of an appointed guardian, the court may appoint an individual identified in the assessment submitted to the court under this paragraph as a successor guardian pursuant to the procedures for the appointment of a legal guardian in Section 366.26.(4)On and after the date that the director executes a declaration pursuant to Section 11217, if the court appoints an approved relative caregiver as the childs legal guardian, the child has been in the care of that approved relative for a period of six consecutive months under a voluntary placement agreement, and the child otherwise meets the conditions for federal financial participation, the child shall be eligible for aid under the Kin-GAP Program as provided in Article 4.7 (commencing with Section 11385) of Chapter 2. The nonfederally eligible child placed with an approved relative caregiver who is appointed as the childs legal guardian shall be eligible for aid under the state-funded Kin-GAP Program, as provided for in Article 4.5 (commencing with Section 11360) of Chapter 2.(5)The person responsible for preparing the assessment may be called and examined by any party to the guardianship proceeding.(b)If the court finds that the child is a person described by Section 300, it may, without adjudicating the child a dependent child of the court, order that services be provided to keep the family together and place the child and the childs parent or guardian under the supervision of the social worker for a time period consistent with Section 301.(c)If the family subsequently is unable or unwilling to cooperate with the services being provided, the social worker may file a petition with the juvenile court pursuant to Section 332 alleging that a previous petition has been sustained and that disposition pursuant to subdivision (b) has been ineffective in ameliorating the situation requiring the child welfare services. Upon hearing the petition, the court shall order either that the petition shall be dismissed or that a new disposition hearing shall be held pursuant to subdivision (d).(d)If the court finds that the child is a person described by Section 300, it may order and adjudge the child to be a dependent child of the court.SEC. 2.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 courts 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 parents or guardians custody, the juvenile court shall order the social worker to provide child welfare services to the child and the childs 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 parents or guardians 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 parents or guardians 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 childs 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 childs 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 childs 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 parents 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 childs, siblings, or half siblings 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 childs 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 courts 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 childs sibling or half sibling from his or her placement and refused to disclose the childs or childs siblings or half siblings whereabouts, refused to return physical custody of the child or childs sibling or half sibling to his or her placement, or refused to return physical custody of the child or childs 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 parents 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 childs attitude toward the implementation of family reunification services, the likelihood of the parents 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 parents access to those court-mandated services and ability to maintain contact with his or her child, and shall document this information in the childs 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, when appropriate.(C)Visitation services, when 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 childs case plan the particular barriers to an incarcerated, institutionalized, or detained parents 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 sheriffs 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, Chapter 4 (commencing with Section 3410) of Title 2 of Part 3 of, the Penal Code, the court shall determine whether the parents participation in a program is in the childs 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, placement with a fit and willing relative, or another planned permanent living arrangement, or, in the case of an Indian child, in consultation with the childs 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 childs 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 childs siblings, grandparents, aunts, and uncles.(C)An evaluation of the childs 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 childs 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. The assessment of a legal guardian may also include the development of a plan for a successor guardian in the case of the incapacity or death of the guardian. In the event of the incapacity or death of an appointed guardian, the court may appoint an individual identified in the assessment submitted to the court as a successor guardian pursuant to the procedures for the appointment of a legal guardian in Section 366.26. 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 relatives or adoptive parents 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 childs 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 childs tribe, a tribal customary adoption, as defined in Section 366.24, is recommended. If tribal customary adoption is recommended, the assessment shall include an analysis of both of the following:(i)Whether tribal customary adoption would or would not be detrimental to the Indian child and the reasons for reaching that conclusion.(ii)Whether the Indian child cannot or should not be returned to the home of the Indian parent or Indian custodian and the reasons for reaching that conclusion.(2)(A)A relative caregivers 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 childs sibling or half sibling.(2)The circumstances under which the abuse or harm was inflicted on the child or the childs sibling or half sibling.(3)The severity of the emotional trauma suffered by the child or the childs 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 childs caregiver receive the childs 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.SEC. 3.Section 366.21 of the Welfare and Institutions Code is amended to read:366.21.(a)Every hearing conducted by the juvenile court reviewing the status of a dependent child shall be placed on the appearance calendar. The court shall advise all persons present at the hearing of the date of the future hearing and of their right to be present and represented by counsel.(b)Except as provided in Sections 294 and 295, notice of the hearing shall be provided pursuant to Section 293.(c)At least 10 calendar days prior to the hearing, the social worker shall file a supplemental report with the court regarding the services provided or offered to the parent or legal guardian to enable him or her to assume custody and the efforts made to achieve legal permanence for the child if efforts to reunify fail, including, but not limited to, efforts to maintain relationships between a child who is 10 years of age or older and has been in out-of-home placement for six months or longer and individuals who are important to the child, consistent with the childs best interests; the progress made; and, where relevant, the prognosis for return of the child to the physical custody of his or her parent or legal guardian; and shall make his or her recommendation for disposition. If the child is a member of a sibling group described in subparagraph (C) of paragraph (1) of subdivision (a) of Section 361.5, the report and recommendation may also take into account those factors described in subdivision (e) relating to the childs sibling group. If the recommendation is not to return the child to a parent or legal guardian, the report shall specify why the return of the child would be detrimental to the child. The social worker shall provide the parent or legal guardian, counsel for the child, and any court-appointed child advocate with a copy of the report, including his or her recommendation for disposition, at least 10 calendar days prior to the hearing. In the case of a child removed from the physical custody of his or her parent or legal guardian, the social worker shall, at least 10 calendar days prior to the hearing, provide a summary of his or her recommendation for disposition to any foster parents, relative caregivers, and certified foster parents who have been approved for adoption by the State Department of Social Services when it is acting as an adoption agency or by a county adoption agency, community care facility, or foster family agency having the physical custody of the child. The social worker shall include a copy of the Judicial Council Caregiver Information Form (JV-290) with the summary of recommendations to the childs foster parents, relative caregivers, or foster parents approved for adoption, in the caregivers primary language when available, along with information on how to file the form with the court.(d)Prior to any hearing involving a child in the physical custody of a community care facility or a foster family agency that may result in the return of the child to the physical custody of his or her parent or legal guardian, or in adoption or the creation of a legal guardianship, or in the case of an Indian child, in consultation with the childs tribe, tribal customary adoption, the facility or agency shall file with the court a report, or a Judicial Council Caregiver Information Form (JV-290), containing its recommendation for disposition. Prior to the hearing involving a child in the physical custody of a foster parent, a relative caregiver, or a certified foster parent who has been approved for adoption by the State Department of Social Services when it is acting as an adoption agency or by a county adoption agency, the foster parent, relative caregiver, or the certified foster parent who has been approved for adoption by the State Department of Social Services when it is acting as an adoption agency or by a county adoption agency, may file with the court a report containing his or her recommendation for disposition. The court shall consider the report and recommendation filed pursuant to this subdivision prior to determining any disposition.(e)(1)At the review hearing held six months after the initial dispositional hearing, but no later than 12 months after the date the child entered foster care as determined in Section 361.49, whichever occurs earlier, after considering the admissible and relevant evidence, the court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment. At the hearing, the court shall consider the criminal history, obtained pursuant to paragraph (1) of subdivision (f) of Section 16504.5, of the parent or legal guardian subsequent to the childs removal to the extent that the criminal record is substantially related to the welfare of the child or the parents or guardians ability to exercise custody and control regarding his or her child, provided the parent or legal guardian agreed to submit fingerprint images to obtain criminal history information as part of the case plan. The court shall also consider whether the child can be returned to the custody of his or her parent who is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with his or her parent. The fact that the parent is enrolled in a certified substance abuse treatment facility shall not be, for that reason alone, prima facie evidence of detriment. The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental. In making its determination, the court shall review and consider the social workers report and recommendations and the report and recommendations of any child advocate appointed pursuant to Section 356.5; and shall consider the efforts or progress, or both, demonstrated by the parent or legal guardian and the extent to which he or she availed himself or herself of services provided, taking into account the particular barriers to a minor parent or a nonminor dependent parent, or an incarcerated, institutionalized, detained, or deported parents or legal guardians access to those court-mandated services and ability to maintain contact with his or her child.(2)Regardless of whether the child is returned to a parent or legal guardian, the court shall specify the factual basis for its conclusion that the return would be detrimental or would not be detrimental. The court also shall make appropriate findings pursuant to subdivision (a) of Section 366; and, when relevant, shall order any additional services reasonably believed to facilitate the return of the child to the custody of his or her parent or legal guardian. The court shall also inform the parent or legal guardian that if the child cannot be returned home by the 12-month permanency hearing, a proceeding pursuant to Section 366.26 may be instituted. This section does not apply in a case in which, pursuant to Section 361.5, the court has ordered that reunification services shall not be provided.(3)If the child was under three years of age on the date of the initial removal, or is a member of a sibling group described in subparagraph (C) of paragraph (1) of subdivision (a) of Section 361.5, and the court finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan, the court may schedule a hearing pursuant to Section 366.26 within 120 days. If, however, the court finds there is a substantial probability that the child, who was under three years of age on the date of initial removal or is a member of a sibling group described in subparagraph (C) of paragraph (1) of subdivision (a) of Section 361.5, may be returned to his or her parent or legal guardian within six months or that reasonable services have not been provided, the court shall continue the case to the 12-month permanency hearing.(4)For the purpose of placing and maintaining a sibling group together in a permanent home, the court, in making its determination to schedule a hearing pursuant to Section 366.26 for some or all members of a sibling group, as described in subparagraph (C) of paragraph (1) of subdivision (a) of Section 361.5, shall review and consider the social workers report and recommendations. Factors the report shall address, and the court shall consider, may include, but need not be limited to, whether the sibling group was removed from parental care as a group, the closeness and strength of the sibling bond, the ages of the siblings, the appropriateness of maintaining the sibling group together, the detriment to the child if sibling ties are not maintained, the likelihood of finding a permanent home for the sibling group, whether the sibling group is currently placed together in a preadoptive home or has a concurrent plan goal of legal permanency in the same home, the wishes of each child whose age and physical and emotional condition permits a meaningful response, and the best interests of each child in the sibling group. The court shall specify the factual basis for its finding that it is in the best interests of each child to schedule a hearing pursuant to Section 366.26 within 120 days for some or all of the members of the sibling group.(5)If the child was removed initially under subdivision (g) of Section 300 and the court finds by clear and convincing evidence that the whereabouts of the parent are still unknown, or the parent has failed to contact and visit the child, the court may schedule a hearing pursuant to Section 366.26 within 120 days. The court shall take into account any particular barriers to a parents ability to maintain contact with his or her child due to the parents incarceration, institutionalization, detention by the United States Department of Homeland Security, or deportation. If the court finds by clear and convincing evidence that the parent has been convicted of a felony indicating parental unfitness, the court may schedule a hearing pursuant to Section 366.26 within 120 days.(6)If the child had been placed under court supervision with a previously noncustodial parent pursuant to Section 361.2, the court shall determine whether supervision is still necessary. The court may terminate supervision and transfer permanent custody to that parent, as provided for by paragraph (1) of subdivision (b) of Section 361.2.(7)In all other cases, the court shall direct that any reunification services previously ordered shall continue to be offered to the parent or legal guardian pursuant to the time periods set forth in subdivision (a) of Section 361.5, provided that the court may modify the terms and conditions of those services.(8)If the child is not returned to his or her parent or legal guardian, the court shall determine whether reasonable services that were designed to aid the parent or legal guardian in overcoming the problems that led to the initial removal and the continued custody of the child have been provided or offered to the parent or legal guardian. The court shall order that those services be initiated, continued, or terminated.(f)(1)The permanency hearing shall be held no later than 12 months after the date the child entered foster care, as that date is determined pursuant to Section 361.49. At the permanency hearing, the court shall determine the permanent plan for the child, which shall include a determination of whether the child will be returned to the childs home and, if so, when, within the time limits of subdivision (a) of Section 361.5. After considering the relevant and admissible evidence, the court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment.(A)At the permanency hearing, the court shall consider the criminal history, obtained pursuant to paragraph (1) of subdivision (f) of Section 16504.5, of the parent or legal guardian subsequent to the childs removal to the extent that the criminal record is substantially related to the welfare of the child or the parents or legal guardians ability to exercise custody and control regarding his or her child, provided that the parent or legal guardian agreed to submit fingerprint images to obtain criminal history information as part of the case plan. The court shall also determine whether reasonable services that were designed to aid the parent or legal guardian to overcome the problems that led to the initial removal and continued custody of the child have been provided or offered to the parent or legal guardian.(B)The court shall also consider whether the child can be returned to the custody of his or her parent who is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with his or her parent. The fact that the parent is enrolled in a certified substance abuse treatment facility shall not be, for that reason alone, prima facie evidence of detriment. The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental.(C)In making its determination, the court shall review and consider the social workers report and recommendations and the report and recommendations of any child advocate appointed pursuant to Section 356.5, shall consider the efforts or progress, or both, demonstrated by the parent or legal guardian and the extent to which he or she availed himself or herself of services provided, taking into account the particular barriers to a minor parent or a nonminor dependent parent, or an incarcerated, institutionalized, detained, or deported parents or legal guardians access to those court-mandated services and ability to maintain contact with his or her child, and shall make appropriate findings pursuant to subdivision (a) of Section 366.(D)For each youth 16 years of age and older, the court shall also determine whether services have been made available to assist him or her in making the transition from foster care to successful adulthood.(2)Regardless of whether the child is returned to his or her parent or legal guardian, the court shall specify the factual basis for its decision. If the child is not returned to a parent or legal guardian, the court shall specify the factual basis for its conclusion that the return would be detrimental. The court also shall make a finding pursuant to subdivision (a) of Section 366. If the child is not returned to his or her parent or legal guardian, the court shall consider, and state for the record, in-state and out-of-state placement options. If the child is placed out of the state, the court shall make a determination whether the out-of-state placement continues to be appropriate and in the best interests of the child.(g)If the time period in which the court-ordered services were provided has met or exceeded the time period set forth in subparagraph (A), (B), or (C) of paragraph (1) of subdivision (a) of Section 361.5, as appropriate, and a child is not returned to the custody of a parent or legal guardian at the permanency hearing held pursuant to subdivision (f), the court shall do one of the following:(1)Continue the case for up to six months for a permanency review hearing, provided that the hearing shall occur within 18 months of the date the child was originally taken from the physical custody of his or her parent or legal guardian. The court shall continue the case only if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time or that reasonable services have not been provided to the parent or legal guardian. For the purposes of this section, in order to find a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time, the court shall be required to find all of the following:(A)That the parent or legal guardian has consistently and regularly contacted and visited with the child.(B)That the parent or legal guardian has made significant progress in resolving problems that led to the childs removal from the home.(C)The parent or legal guardian has demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the childs safety, protection, physical and emotional well-being, and special needs.(i)For purposes of this subdivision, the courts decision to continue the case based on a finding or substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian is a compelling reason for determining that a hearing held pursuant to Section 366.26 is not in the best interests of the child.(ii)The court shall inform the parent or legal guardian that if the child cannot be returned home by the next permanency review hearing, a proceeding pursuant to Section 366.26 may be instituted. The court shall not order that a hearing pursuant to Section 366.26 be held unless there is clear and convincing evidence that reasonable services have been provided or offered to the parent or legal guardian.(2)Continue the case for up to six months for a permanency review hearing, provided that the hearing shall occur within 18 months of the date the child was originally taken from the physical custody of his or her parent or legal guardian, if the parent has been arrested and issued an immigration hold, detained by the United States Department of Homeland Security, or deported to his or her country of origin, and the court determines either that there is a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time or that reasonable services have not been provided to the parent or legal guardian.(3)For purposes of paragraph (2), in order to find a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time, the court shall find all of the following:(A)The parent or legal guardian has consistently and regularly contacted and visited with the child, taking into account any particular barriers to a parents ability to maintain contact with his or her child due to the parents arrest and receipt of an immigration hold, detention by the United States Department of Homeland Security, or deportation.(B)The parent or legal guardian has made significant progress in resolving the problems that led to the childs removal from the home.(C)The parent or legal guardian has demonstrated the capacity or ability both to complete the objectives of his or her treatment plan and to provide for the childs safety, protection, physical and emotional well-being, and special needs.(4)Order that a hearing be held within 120 days, pursuant to Section 366.26, but only if the court does not continue the case to the permanency planning review hearing and there is clear and convincing evidence that reasonable services have been provided or offered to the parents or legal guardians. On and after January 1, 2012, a hearing pursuant to Section 366.26 shall not be ordered if the child is a nonminor dependent, unless the nonminor dependent is an Indian child and tribal customary adoption is recommended as the permanent plan.(5)Order that the child remain in foster care, but only if the court finds by clear and convincing evidence, based upon the evidence already presented to it, including a recommendation by the State Department of Social Services when it is acting as an adoption agency or by a county adoption agency, that there is a compelling reason for determining that a hearing held pursuant to Section 366.26 is not in the best interests of the child because the child is not a proper subject for adoption and has no one willing to accept legal guardianship as of the hearing date. For purposes of this section, a recommendation by the State Department of Social Services when it is acting as an adoption agency or by a county adoption agency that adoption is not in the best interests of the child shall constitute a compelling reason for the courts determination. That recommendation shall be based on the present circumstances of the child and shall not preclude a different recommendation at a later date if the childs circumstances change. On and after January 1, 2012, the nonminor dependents legal status as an adult is in and of itself a compelling reason not to hold a hearing pursuant to Section 366.26. The court may order that a nonminor dependent who otherwise is eligible pursuant to Section 11403 remain in a planned, permanent living arrangement.(A)The court shall make factual findings identifying any barriers to achieving the permanent plan as of the hearing date. When the child is under 16 years of age, the court shall order a permanent plan of return home, adoption, tribal customary adoption in the case of an Indian child, legal guardianship, or placement with a fit and willing relative, as appropriate. When the child is 16 years of age or older, or is a nonminor dependent, and no other permanent plan is appropriate at the time of the hearing, the court may order another planned permanent living arrangement, as described in paragraph (2) of subdivision (i) of Section 16501.(B)If the court orders that a child who is 10 years of age or older remain in foster care, the court shall determine whether the agency has made reasonable efforts to maintain the childs relationships with individuals other than the childs siblings who are important to the child, consistent with the childs best interests, and may make any appropriate order to ensure that those relationships are maintained.(C)If the child is not returned to his or her parent or legal guardian, the court shall consider, and state for the record, in-state and out-of-state options for permanent placement. If the child is placed out of the state, the court shall make a determination whether the out-of-state placement continues to be appropriate and in the best interests of the child.(h)In any case in which the court orders that a hearing pursuant to Section 366.26 shall be held, it shall also order the termination of reunification services to the parent or legal guardian. The court shall continue to permit the parent or legal guardian to visit the child pending the hearing unless it finds that visitation would be detrimental to the child. The court shall make any other appropriate orders to enable the child to maintain relationships with individuals, other than the childs siblings, who are important to the child, consistent with the childs best interests. When the court orders a termination of reunification services to the parent or legal guardian, it shall also order that the childs caregiver receive the childs birth certificate in accordance with Sections 16010.4 and 16010.5. Additionally, when the court orders a termination of reunification services to the parent or legal guardian, it shall order, when appropriate, that a child who is 16 years of age or older receive his or her birth certificate.(i)(1)Whenever a court orders that a hearing pursuant to Section 366.26, including, when, in consultation with the childs tribe, tribal customary adoption is recommended, shall be held, it shall direct the agency supervising the child and the county adoption agency, or the State Department of Social Services when it is acting as an adoption agency, to prepare an assessment that shall include:(A)Current search efforts for an absent parent or parents or legal guardians.(B)A review of the amount of and nature of any contact between the child and his or her parents or legal guardians and other members of his or her extended family since the time of placement. Although the extended family of each child shall be reviewed on a case-by-case basis, extended family for the purpose of this subparagraph shall include, but not be limited to, the childs siblings, grandparents, aunts, and uncles.(C)An evaluation of the childs medical, developmental, scholastic, mental, and emotional status.(D)A preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent or legal guardian, including the prospective tribal customary adoptive parent, particularly the caretaker, to include a social history including screening for criminal records and prior referrals for child abuse or neglect, the capability to meet the childs 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. The assessment of a legal guardian may also include the development of a plan for a successor guardian in the case of the incapacity or death of the guardian. In the event of the incapacity or death of an appointed guardian, the court may appoint an individual identified in the assessment submitted to the court as a successor guardian pursuant to the procedures for the appointment of a legal guardian in Section 366.26.(E)The relationship of the child to any identified prospective adoptive parent or legal guardian, the duration and character of the relationship, the degree of attachment of the child to the prospective relative guardian or adoptive parent, the relatives or adoptive parents strong commitment to caring permanently for the child, the motivation for seeking adoption or guardianship, a statement from the child concerning placement and the adoption or guardianship, and whether the child, if over 12 years of age, has been consulted about the proposed relative guardianship arrangements, unless the childs age or physical, emotional, or other condition precludes his or her meaningful response, and if so, a description of the condition.(F)A description of efforts to be made to identify a prospective adoptive parent or legal guardian, including, but not limited to, child-specific recruitment and listing on an adoption exchange within the state or out of the state.(G)An analysis of the likelihood that the child will be adopted if parental rights are terminated.(H)In the case of an Indian child, in addition to subparagraphs (A) to (G), inclusive, an assessment of the likelihood that the child will be adopted, when, in consultation with the childs tribe, a tribal customary adoption, as defined in Section 366.24, is recommended. If tribal customary adoption is recommended, the assessment shall include an analysis of both of the following:(i)Whether tribal customary adoption would or would not be detrimental to the Indian child and the reasons for reaching that conclusion.(ii)Whether the Indian child cannot or should not be returned to the home of the Indian parent or Indian custodian and the reasons for reaching that conclusion.(2)(A)A relative caregivers preference for legal guardianship over adoption, if it is due to circumstances that do not include an unwillingness to accept legal or financial responsibility for the child, shall not constitute the sole basis for recommending removal of the child from the relative caregiver for purposes of adoptive placement.(B)Regardless of his or her immigration status, a relative caregiver shall be given information regarding the permanency options of guardianship and adoption, including the long-term benefits and consequences of each option, prior to establishing legal guardianship or pursuing adoption. If the proposed permanent plan is guardianship with an approved relative caregiver for a minor eligible for aid under the Kin-GAP Program, as provided for in Article 4.7 (commencing with Section 11385) of Chapter 2 of Part 3 of Division 9, the relative caregiver shall be informed about the terms and conditions of the negotiated agreement pursuant to Section 11387 and shall agree to its execution prior to the hearing held pursuant to Section 366.26. A copy of the executed negotiated agreement shall be attached to the assessment.(j)If, at any hearing held pursuant to Section 366.26, a guardianship is established for the minor with an approved relative caregiver, and juvenile court dependency is subsequently dismissed, the minor shall be eligible for aid under the Kin-GAP Program, as provided for in Article 4.5 (commencing with Section 11360) or Article 4.7 (commencing with Section 11385), as applicable, of Chapter 2 of Part 3 of Division 9.(k)As used in this section, relative means an adult who is related to the minor by blood, adoption, or affinity within the fifth degree of kinship, including stepparents, stepsiblings, and all relatives whose status is preceded by the words great, great-great, or grand, or the spouse of any of those persons even if the marriage was terminated by death or dissolution. If the proposed permanent plan is guardianship with an approved relative caregiver for a minor eligible for aid under the Kin-GAP Program, as provided for in Article 4.7 (commencing with Section 11385) of Chapter 2 of Part 3 of Division 9, relative as used in this section has the same meaning as relative as defined in subdivision (c) of Section 11391.(l)For purposes of this section, evidence of any of the following circumstances shall not, in and of itself, be deemed a failure to provide or offer reasonable services:(1)The child has been placed with a foster family that is eligible to adopt a child, or has been placed in a preadoptive home.(2)The case plan includes services to make and finalize a permanent placement for the child if efforts to reunify fail.(3)Services to make and finalize a permanent placement for the child, if efforts to reunify fail, are provided concurrently with services to reunify the family.SEC. 4.Section 366.22 of the Welfare and Institutions Code is amended to read:366.22.(a)(1)When a case has been continued pursuant to paragraph (1) or (2) of subdivision (g) of Section 366.21, the permanency review hearing shall occur within 18 months after the date the child was originally removed from the physical custody of his or her parent or legal guardian. After considering the admissible and relevant evidence, the court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment. At the permanency review hearing, the court shall consider the criminal history, obtained pursuant to paragraph (1) of subdivision (f) of Section 16504.5, of the parent or legal guardian subsequent to the childs removal, to the extent that the criminal record is substantially related to the welfare of the child or the parents or legal guardians ability to exercise custody and control regarding his or her child, provided that the parent or legal guardian agreed to submit fingerprint images to obtain criminal history information as part of the case plan. The court shall also consider whether the child can be returned to the custody of his or her parent who is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with his or her parent. The fact that the parent is enrolled in a certified substance abuse treatment facility shall not be, for that reason alone, prima facie evidence of detriment. The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental. In making its determination, the court shall review and consider the social workers report and recommendations and the report and recommendations of any child advocate appointed pursuant to Section 356.5; shall consider the efforts or progress, or both, demonstrated by the parent or legal guardian and the extent to which he or she availed himself or herself of services provided, taking into account the particular barriers of a minor parent or a nonminor dependent parent, or an incarcerated or institutionalized parents or legal guardians access to those court-mandated services and ability to maintain contact with his or her child; and shall make appropriate findings pursuant to subdivision (a) of Section 366.(2)Whether or not the child is returned to his or her parent or legal guardian, the court shall specify the factual basis for its decision. If the child is not returned to a parent or legal guardian, the court shall specify the factual basis for its conclusion that return would be detrimental. If the child is not returned to his or her parent or legal guardian, the court shall consider, and state for the record, in-state and out-of-state options for the childs permanent placement. If the child is placed out of the state, the court shall make a determination whether the out-of-state placement continues to be appropriate and in the best interests of the child.(3)Unless the conditions in subdivision (b) are met and the child is not returned to a parent or legal guardian at the permanency review hearing, the court shall order that a hearing be held pursuant to Section 366.26 in order to determine whether adoption, or, in the case of an Indian child, in consultation with the childs tribe, tribal customary adoption, guardianship, or continued placement in foster care is the most appropriate plan for the child. On and after January 1, 2012, a hearing pursuant to Section 366.26 shall not be ordered if the child is a nonminor dependent, unless the nonminor dependent is an Indian child, and tribal customary adoption is recommended as the permanent plan. However, if the court finds by clear and convincing evidence, based on the evidence already presented to it, including a recommendation by the State Department of Social Services when it is acting as an adoption agency or by a county adoption agency, that there is a compelling reason, as described in paragraph (5) of subdivision (g) of Section 366.21, for determining that a hearing held under Section 366.26 is not in the best interests of the child because the child is not a proper subject for adoption and has no one willing to accept legal guardianship as of the hearing date, the court may, only under these circumstances, order that the child remain in foster care with a permanent plan of return home, adoption, tribal customary adoption in the case of an Indian child, legal guardianship, or placement with a fit and willing relative, as appropriate. If the child is 16 years of age or older or is a nonminor dependent, and no other permanent plan is appropriate at the time of the hearing, the court may order another planned permanent living arrangement, as described in paragraph (2) of subdivision (i) of Section 16501. The court shall make factual findings identifying any barriers to achieving the permanent plan as of the hearing date. On and after January 1, 2012, the nonminor dependents legal status as an adult is in and of itself a compelling reason not to hold a hearing pursuant to Section 366.26. The court may order that a nonminor dependent who otherwise is eligible pursuant to Section 11403 remain in a planned, permanent living arrangement. If the court orders that a child who is 10 years of age or older remain in foster care, the court shall determine whether the agency has made reasonable efforts to maintain the childs relationships with individuals other than the childs siblings who are important to the child, consistent with the childs best interests, and may make any appropriate order to ensure that those relationships are maintained. The hearing shall be held no later than 120 days from the date of the permanency review hearing. The court shall also order termination of reunification services to the parent or legal guardian. The court shall continue to permit the parent or legal guardian to visit the child unless it finds that visitation would be detrimental to the child. The court shall determine whether reasonable services have been offered or provided to the parent or legal guardian. For purposes of this subdivision, evidence of any of the following circumstances shall not, in and of themselves, be deemed a failure to provide or offer reasonable services:(A)The child has been placed with a foster family that is eligible to adopt a child, or has been placed in a preadoptive home.(B)The case plan includes services to make and finalize a permanent placement for the child if efforts to reunify fail.(C)Services to make and finalize a permanent placement for the child, if efforts to reunify fail, are provided concurrently with services to reunify the family.(b)If the child is not returned to a parent or legal guardian at the permanency review hearing and the court determines by clear and convincing evidence that the best interests of the child would be met by the provision of additional reunification services to a parent or legal guardian who is making significant and consistent progress in a court-ordered residential substance abuse treatment program, a parent who was either a minor parent or a nonminor dependent parent at the time of the initial hearing making significant and consistent progress in establishing a safe home for the childs return, or a parent recently discharged from incarceration, institutionalization, or the custody of the United States Department of Homeland Security and making significant and consistent progress in establishing a safe home for the childs return, the court may continue the case for up to six months for a subsequent permanency review hearing, provided that the hearing shall occur within 24 months of the date the child was originally taken from the physical custody of his or her parent or legal guardian. The court shall continue the case only if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time or that reasonable services have not been provided to the parent or legal guardian. For the purposes of this section, in order to find a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time, the court shall be required to find all of the following:(1)That the parent or legal guardian has consistently and regularly contacted and visited with the child.(2)That the parent or legal guardian has made significant and consistent progress in the prior 18 months in resolving problems that led to the childs removal from the home.(3)The parent or legal guardian has demonstrated the capacity and ability both to complete the objectives of his or her substance abuse treatment plan as evidenced by reports from a substance abuse provider as applicable, or complete a treatment plan postdischarge from incarceration, institutionalization, or detention, or following deportation to his or her country of origin and his or her return to the United States, and to provide for the childs safety, protection, physical and emotional well-being, and special needs.For purposes of this subdivision, the courts decision to continue the case based on a finding or substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian is a compelling reason for determining that a hearing held pursuant to Section 366.26 is not in the best interests of the child.The court shall inform the parent or legal guardian that if the child cannot be returned home by the subsequent permanency review hearing, a proceeding pursuant to Section 366.26 may be instituted. The court shall not order that a hearing pursuant to Section 366.26 be held unless there is clear and convincing evidence that reasonable services have been provided or offered to the parent or legal guardian.(c)(1)Whenever a court orders that a hearing pursuant to Section 366.26, including when a tribal customary adoption is recommended, shall be held, it shall direct the agency supervising the child and the county adoption agency, or the State Department of Social Services when it is acting as an adoption agency, to prepare an assessment that shall include:(A)Current search efforts for an absent parent or parents.(B)A review of the amount of and nature of any contact between the child and his or her parents and other members of his or her extended family since the time of placement. Although the extended family of each child shall be reviewed on a case-by-case basis, extended family for the purposes of this subparagraph shall include, but not be limited to, the childs siblings, grandparents, aunts, and uncles.(C)An evaluation of the childs medical, developmental, scholastic, mental, and emotional status.(D) A preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent or legal guardian, particularly the caretaker, to include a social history including screening for criminal records and prior referrals for child abuse or neglect, the capability to meet the childs needs, and the understanding of the legal and financial rights and responsibilities of adoption and guardianship. If a proposed legal guardian is a relative of the minor, the assessment shall also consider, but need not be limited to, all of the factors specified in subdivision (a) of Section 361.3 and Section 361.4. The assessment of a legal guardian may also include the development of a plan for a successor guardian in the case of the incapacity or death of the guardian. In the event of the incapacity or death of an appointed guardian, the court may appoint an individual identified in the assessment submitted to the court as a successor guardian pursuant to the procedures for the appointment of a legal guardian in Section 366.26.(E)The relationship of the child to any identified prospective adoptive parent or legal guardian, the duration and character of the relationship, the degree of attachment of the child to the prospective relative guardian or adoptive parent, the relatives or adoptive parents strong commitment to caring permanently for the child, the motivation for seeking adoption or legal guardianship, a statement from the child concerning placement and the adoption or legal guardianship, and whether the child, if over 12 years of age, has been consulted about the proposed relative guardianship arrangements, unless the childs 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 childs tribe, a tribal customary adoption, as defined in Section 366.24, is recommended. If tribal customary adoption is recommended, the assessment shall include an analysis of both of the following:(i)Whether tribal customary adoption would or would not be detrimental to the Indian child and the reasons for reaching that conclusion.(ii)Whether the Indian child cannot or should not be returned to the home of the Indian parent or Indian custodian and the reasons for reaching that conclusion.(2)(A)A relative caregivers preference for legal guardianship over adoption, if it is due to circumstances that do not include an unwillingness to accept legal or financial responsibility for the child, shall not constitute the sole basis for recommending removal of the child from the relative caregiver for purposes of adoptive placement.(B)Regardless of his or her immigration status, a relative caregiver shall be given information regarding the permanency options of guardianship and adoption, including the long-term benefits and consequences of each option, prior to establishing legal guardianship or pursuing adoption. If the proposed permanent plan is guardianship with an approved relative caregiver for a minor eligible for aid under the Kin-GAP Program, as provided for in Article 4.7 (commencing with Section 11385) of Chapter 2 of Part 3 of Division 9, the relative caregiver shall be informed about the terms and conditions of the negotiated agreement pursuant to Section 11387 and shall agree to its execution prior to the hearing held pursuant to Section 366.26. A copy of the executed negotiated agreement shall be attached to the assessment.(d)This section shall become operative January 1, 1999. If at any hearing held pursuant to Section 366.26, a legal guardianship is established for the minor with an approved relative caregiver, and juvenile court dependency is subsequently dismissed, the minor shall be eligible for aid under the Kin-GAP Program, as provided for in Article 4.5 (commencing with Section 11360) or Article 4.7 (commencing with Section 11385), as applicable, of Chapter 2 of Part 3 of Division 9.(e)As used in this section, relative means an adult who is related to the child by blood, adoption, or affinity within the fifth degree of kinship, including stepparents, stepsiblings, and all relatives whose status is preceded by the words great, great-great, or grand, or the spouse of any of those persons even if the marriage was terminated by death or dissolution. If the proposed permanent plan is guardianship with an approved relative caregiver for a minor eligible for aid under the Kin-GAP Program, as provided for in Article 4.7 (commencing with Section 11385) of Chapter 2 of Part 3 of Division 9, relative as used in this section has the same meaning as relative as defined in subdivision (c) of Section 11391.SEC. 5.Section 366.25 of the Welfare and Institutions Code is amended to read:366.25.(a)(1)When a case has been continued pursuant to subdivision (b) of Section 366.22, the subsequent permanency review hearing shall occur within 24 months after the date the child was originally removed from the physical custody of his or her parent or legal guardian. After considering the relevant and admissible evidence, the court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment. At the subsequent permanency review hearing, the court shall consider the criminal history, obtained pursuant to paragraph (1) of subdivision (f) of Section 16504.5, of the parent or legal guardian subsequent to the childs removal to the extent that the criminal record is substantially related to the welfare of the child or parents or legal guardians ability to exercise custody and control regarding his or her child provided that the parent or legal guardian agreed to submit fingerprint images to obtain criminal history information as part of the case plan. The court shall also consider whether the child can be returned to the custody of a parent who is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with his or her parent. The fact that the parent is enrolled in a certified substance abuse treatment facility shall not be, for that reason alone, prima facie evidence of detriment. The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental. In making its determination, the court shall review and consider the social workers report and recommendations and the report and recommendations of any child advocate appointed pursuant to Section 356.5; shall consider the efforts or progress, or both, demonstrated by the parent or legal guardian and the extent to which he or she availed himself or herself of services provided; and shall make appropriate findings pursuant to subdivision (a) of Section 366.(2)Whether or not the child is returned to his or her parent or legal guardian, the court shall specify the factual basis for its decision. If the child is not returned to a parent or legal guardian, the court shall specify the factual basis for its conclusion that return would be detrimental. If the child is not returned to his or her parent or legal guardian, the court shall consider and state for the record, in-state and out-of-state options for the childs permanent placement. If the child is placed out of the state, the court shall make a determination whether the out-of-state placement continues to be appropriate and in the best interests of the child.(3)If the child is not returned to a parent or legal guardian at the subsequent permanency review hearing, the court shall order that a hearing be held pursuant to Section 366.26 in order to determine whether adoption, or, in the case of an Indian child, tribal customary adoption, guardianship, or, in the case of a child 16 years of age or older when no other permanent plan is appropriate, another planned permanent living arrangement is the most appropriate plan for the child. On and after January 1, 2012, a hearing pursuant to Section 366.26 shall not be ordered if the child is a nonminor dependent, unless the nonminor dependent is an Indian child and tribal customary adoption is recommended as the permanent plan. However, if the court finds by clear and convincing evidence, based on the evidence already presented to it, including a recommendation by the State Department of Social Services when it is acting as an adoption agency or by a county adoption agency, that there is a compelling reason, as described in paragraph (5) of subdivision (g) of Section 366.21, for determining that a hearing held under Section 366.26 is not in the best interest of the child because the child is not a proper subject for adoption or, in the case of an Indian child, tribal customary adoption, and has no one willing to accept legal guardianship as of the hearing date, then the court may, only under these circumstances, order that the child remain in foster care with a permanent plan of return home, adoption, tribal customary adoption in the case of an Indian child, legal guardianship, or placement with a fit and willing relative, as appropriate. If the child is 16 years of age or older or is a nonminor dependent, and no other permanent plan is appropriate at the time of the hearing, the court may order another planned permanent living arrangement, as described in paragraph (2) of subdivision (i) of Section 16501. The court shall make factual findings identifying any barriers to achieving the permanent plan as of the hearing date. On and after January 1, 2012, the nonminor dependents legal status as an adult is in and of itself a compelling reason not to hold a hearing pursuant to Section 366.26. The court may order that a nonminor dependent who otherwise is eligible pursuant to Section 11403 remain in a planned, permanent living arrangement. If the court orders that a child who is 10 years of age or older remain in foster care, the court shall determine whether the agency has made reasonable efforts to maintain the childs relationships with individuals other than the childs siblings who are important to the child, consistent with the childs best interests, and may make any appropriate order to ensure that those relationships are maintained. The hearing shall be held no later than 120 days from the date of the subsequent permanency review hearing. The court shall also order termination of reunification services to the parent or legal guardian. The court shall continue to permit the parent or legal guardian to visit the child unless it finds that visitation would be detrimental to the child. The court shall determine whether reasonable services have been offered or provided to the parent or legal guardian. For purposes of this paragraph, evidence of any of the following circumstances shall not, in and of themselves, be deemed a failure to provide or offer reasonable services:(A)The child has been placed with a foster family that is eligible to adopt a child, or has been placed in a preadoptive home.(B)The case plan includes services to make and finalize a permanent placement for the child if efforts to reunify fail.(C)Services to make and finalize a permanent placement for the child, if efforts to reunify fail, are provided concurrently with services to reunify the family.(b)(1)Whenever a court orders that a hearing pursuant to Section 366.26 shall be held, it shall direct the agency supervising the child and the county adoption agency, or the State Department of Social Services when it is acting as an adoption agency, to prepare an assessment that shall include:(A)Current search efforts for an absent parent or parents.(B)A review of the amount of, and nature of, any contact between the child and his or her parents and other members of his or her extended family since the time of placement. Although the extended family of each child shall be reviewed on a case-by-case basis, extended family for the purposes of this paragraph shall include, but not be limited to, the childs siblings, grandparents, aunts, and uncles.(C)An evaluation of the childs medical, developmental, scholastic, mental, and emotional status.(D)A preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent or legal guardian, including a prospective tribal customary adoptive parent, particularly the caretaker, to include a social history including screening for criminal records and prior referrals for child abuse or neglect, the capability to meet the childs needs, and the understanding of the legal and financial rights and responsibilities of adoption and guardianship. If a proposed legal guardian is a relative of the minor, the assessment shall also consider, but need not be limited to, all of the factors specified in subdivision (a) of Section 361.3 and in Section 361.4. The assessment of a legal guardian may also include the development of a plan for a successor guardian in the case of the incapacity or death of the guardian. In the event of the incapacity or death of an appointed guardian, the court may appoint an individual identified in the assessment submitted to the court as a successor guardian pursuant to the procedures for the appointment of a legal guardian in Section 366.26.(E)The relationship of the child to any identified prospective adoptive parent or legal guardian, including a prospective tribal customary adoptive parent, the duration and character of the relationship, the degree of attachment of the child to the prospective relative guardian or adoptive parent, the relatives or adoptive parents strong commitment to caring permanently for the child, the motivation for seeking adoption or legal guardianship, a statement from the child concerning placement and the adoption or legal guardianship, and whether the child, if over 12 years of age, has been consulted about the proposed relative guardianship arrangements, unless the childs 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 childs tribe, a tribal customary adoption, as defined in Section 366.24, is recommended. If tribal customary adoption is recommended, the assessment shall include an analysis of both of the following:(i)Whether tribal customary adoption would or would not be detrimental to the Indian child and the reasons for reaching that conclusion.(ii)Whether the Indian child cannot or should not be returned to the home of the Indian parent or Indian custodian and the reasons for reaching that conclusion.(2)(A)A relative caregivers preference for legal guardianship over adoption, if it is due to circumstances that do not include an unwillingness to accept legal or financial responsibility for the child, shall not constitute the sole basis for recommending removal of the child from the relative caregiver for purposes of adoptive placement.(B)Regardless of his or her immigration status, a relative caregiver shall be given information regarding the permanency options of guardianship and adoption, including the long-term benefits and consequences of each option, prior to establishing legal guardianship or pursuing adoption. If the proposed permanent plan is guardianship with an approved relative caregiver for a minor eligible for aid under the Kin-GAP Program, as provided for in Article 4.7 (commencing with Section 11385) of Chapter 2 of Part 3 of Division 9, the relative caregiver shall be informed about the terms and conditions of the negotiated agreement pursuant to Section 11387 and shall agree to its execution prior to the hearing held pursuant to Section 366.26. A copy of the executed negotiated agreement shall be attached to the assessment.(c)If, at any hearing held pursuant to Section 366.26, a guardianship is established for the minor with an approved relative caregiver, and juvenile court dependency is subsequently dismissed, the minor shall be eligible for aid under the Kin-GAP Program, as provided for in Article 4.5 (commencing with Section 11360) or Article 4.7 (commencing with Section 11385), as applicable, of Chapter 2 of Part 3 of Division 9.(d)As used in this section, relative means an adult who is related to the minor by blood, adoption, or affinity within the fifth degree of kinship, including stepparents, stepsiblings, and all relatives whose status is preceded by the words great, great-great, or grand, or the spouse of any of those persons even if the marriage was terminated by death or dissolution. If the proposed permanent plan is guardianship with an approved relative caregiver for a minor eligible for aid under the Kin-GAP Program, as provided in Article 4.7 (commencing with Section 11385) of Chapter 2 of Part 3 of Division 9, relative as used in this section has the same meaning as relative as defined in subdivision (c) of Section 11391.After receiving and considering the evidence on the proper disposition of the case, the juvenile court may enter judgment as follows:
(a)(1)Notwithstanding any other law, if the court finds that the child is a person described by Section 300 and the parent has advised the court that the parent is not interested in family maintenance or family reunification services, it may, in addition to or in lieu of adjudicating the child a dependent child of the court, order a legal guardianship, appoint a legal guardian, and issue letters of guardianship, if the court determines that a guardianship is in the best interest of the child, provided the parent and the child agree to the guardianship, unless the childs age or physical, emotional, or mental condition prevents the childs meaningful response. The court shall advise the parent and the child that no reunification services will be provided as a result of the establishment of a guardianship. The proceeding for the appointment of a guardian shall be in the juvenile court.
(2)Any application for termination of guardianship shall be filed in juvenile court in a form as may be developed by the Judicial Council pursuant to Section 68511 of the Government Code. Sections 366.4 and 388 shall apply to this order of guardianship.
(3)(A)A person shall not be appointed a legal guardian under this section until an assessment as specified in subdivision (g) of Section 361.5 is read and considered by the court and reflected in the minutes of the court. The court may consider any plan for a successor guardian submitted to the court.
(B)In the event of the incapacity or death of an appointed guardian, the court may appoint an individual identified in the assessment submitted to the court under this paragraph as a successor guardian pursuant to the procedures for the appointment of a legal guardian in Section 366.26.
(4)On and after the date that the director executes a declaration pursuant to Section 11217, if the court appoints an approved relative caregiver as the childs legal guardian, the child has been in the care of that approved relative for a period of six consecutive months under a voluntary placement agreement, and the child otherwise meets the conditions for federal financial participation, the child shall be eligible for aid under the Kin-GAP Program as provided in Article 4.7 (commencing with Section 11385) of Chapter 2. The nonfederally eligible child placed with an approved relative caregiver who is appointed as the childs legal guardian shall be eligible for aid under the state-funded Kin-GAP Program, as provided for in Article 4.5 (commencing with Section 11360) of Chapter 2.
(5)The person responsible for preparing the assessment may be called and examined by any party to the guardianship proceeding.
(b)If the court finds that the child is a person described by Section 300, it may, without adjudicating the child a dependent child of the court, order that services be provided to keep the family together and place the child and the childs parent or guardian under the supervision of the social worker for a time period consistent with Section 301.
(c)If the family subsequently is unable or unwilling to cooperate with the services being provided, the social worker may file a petition with the juvenile court pursuant to Section 332 alleging that a previous petition has been sustained and that disposition pursuant to subdivision (b) has been ineffective in ameliorating the situation requiring the child welfare services. Upon hearing the petition, the court shall order either that the petition shall be dismissed or that a new disposition hearing shall be held pursuant to subdivision (d).
(d)If the court finds that the child is a person described by Section 300, it may order and adjudge the child to be a dependent child of the court.
SEC. 2.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 courts 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 parents or guardians custody, the juvenile court shall order the social worker to provide child welfare services to the child and the childs 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 parents or guardians 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 parents or guardians 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 childs 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 childs 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 childs 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 parents 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 childs, siblings, or half siblings 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 childs 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 courts 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 childs sibling or half sibling from his or her placement and refused to disclose the childs or childs siblings or half siblings whereabouts, refused to return physical custody of the child or childs sibling or half sibling to his or her placement, or refused to return physical custody of the child or childs 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 parents 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 childs attitude toward the implementation of family reunification services, the likelihood of the parents 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 parents access to those court-mandated services and ability to maintain contact with his or her child, and shall document this information in the childs 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, when appropriate.
(C)Visitation services, when 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 childs case plan the particular barriers to an incarcerated, institutionalized, or detained parents 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 sheriffs 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, Chapter 4 (commencing with Section 3410) of Title 2 of Part 3 of, the Penal Code, the court shall determine whether the parents participation in a program is in the childs 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, placement with a fit and willing relative, or another planned permanent living arrangement, or, in the case of an Indian child, in consultation with the childs 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 childs 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 childs siblings, grandparents, aunts, and uncles.
(C)An evaluation of the childs 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 childs 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. The assessment of a legal guardian may also include the development of a plan for a successor guardian in the case of the incapacity or death of the guardian. In the event of the incapacity or death of an appointed guardian, the court may appoint an individual identified in the assessment submitted to the court as a successor guardian pursuant to the procedures for the appointment of a legal guardian in Section 366.26. 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 relatives or adoptive parents 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 childs 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 childs tribe, a tribal customary adoption, as defined in Section 366.24, is recommended. If tribal customary adoption is recommended, the assessment shall include an analysis of both of the following:
(i)Whether tribal customary adoption would or would not be detrimental to the Indian child and the reasons for reaching that conclusion.
(ii)Whether the Indian child cannot or should not be returned to the home of the Indian parent or Indian custodian and the reasons for reaching that conclusion.
(2)(A)A relative caregivers 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 childs sibling or half sibling.
(2)The circumstances under which the abuse or harm was inflicted on the child or the childs sibling or half sibling.
(3)The severity of the emotional trauma suffered by the child or the childs 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 childs caregiver receive the childs 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.
SEC. 3.Section 366.21 of the Welfare and Institutions Code is amended to read:366.21.(a)Every hearing conducted by the juvenile court reviewing the status of a dependent child shall be placed on the appearance calendar. The court shall advise all persons present at the hearing of the date of the future hearing and of their right to be present and represented by counsel.
(b)Except as provided in Sections 294 and 295, notice of the hearing shall be provided pursuant to Section 293.
(c)At least 10 calendar days prior to the hearing, the social worker shall file a supplemental report with the court regarding the services provided or offered to the parent or legal guardian to enable him or her to assume custody and the efforts made to achieve legal permanence for the child if efforts to reunify fail, including, but not limited to, efforts to maintain relationships between a child who is 10 years of age or older and has been in out-of-home placement for six months or longer and individuals who are important to the child, consistent with the childs best interests; the progress made; and, where relevant, the prognosis for return of the child to the physical custody of his or her parent or legal guardian; and shall make his or her recommendation for disposition. If the child is a member of a sibling group described in subparagraph (C) of paragraph (1) of subdivision (a) of Section 361.5, the report and recommendation may also take into account those factors described in subdivision (e) relating to the childs sibling group. If the recommendation is not to return the child to a parent or legal guardian, the report shall specify why the return of the child would be detrimental to the child. The social worker shall provide the parent or legal guardian, counsel for the child, and any court-appointed child advocate with a copy of the report, including his or her recommendation for disposition, at least 10 calendar days prior to the hearing. In the case of a child removed from the physical custody of his or her parent or legal guardian, the social worker shall, at least 10 calendar days prior to the hearing, provide a summary of his or her recommendation for disposition to any foster parents, relative caregivers, and certified foster parents who have been approved for adoption by the State Department of Social Services when it is acting as an adoption agency or by a county adoption agency, community care facility, or foster family agency having the physical custody of the child. The social worker shall include a copy of the Judicial Council Caregiver Information Form (JV-290) with the summary of recommendations to the childs foster parents, relative caregivers, or foster parents approved for adoption, in the caregivers primary language when available, along with information on how to file the form with the court.
(d)Prior to any hearing involving a child in the physical custody of a community care facility or a foster family agency that may result in the return of the child to the physical custody of his or her parent or legal guardian, or in adoption or the creation of a legal guardianship, or in the case of an Indian child, in consultation with the childs tribe, tribal customary adoption, the facility or agency shall file with the court a report, or a Judicial Council Caregiver Information Form (JV-290), containing its recommendation for disposition. Prior to the hearing involving a child in the physical custody of a foster parent, a relative caregiver, or a certified foster parent who has been approved for adoption by the State Department of Social Services when it is acting as an adoption agency or by a county adoption agency, the foster parent, relative caregiver, or the certified foster parent who has been approved for adoption by the State Department of Social Services when it is acting as an adoption agency or by a county adoption agency, may file with the court a report containing his or her recommendation for disposition. The court shall consider the report and recommendation filed pursuant to this subdivision prior to determining any disposition.
(e)(1)At the review hearing held six months after the initial dispositional hearing, but no later than 12 months after the date the child entered foster care as determined in Section 361.49, whichever occurs earlier, after considering the admissible and relevant evidence, the court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment. At the hearing, the court shall consider the criminal history, obtained pursuant to paragraph (1) of subdivision (f) of Section 16504.5, of the parent or legal guardian subsequent to the childs removal to the extent that the criminal record is substantially related to the welfare of the child or the parents or guardians ability to exercise custody and control regarding his or her child, provided the parent or legal guardian agreed to submit fingerprint images to obtain criminal history information as part of the case plan. The court shall also consider whether the child can be returned to the custody of his or her parent who is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with his or her parent. The fact that the parent is enrolled in a certified substance abuse treatment facility shall not be, for that reason alone, prima facie evidence of detriment. The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental. In making its determination, the court shall review and consider the social workers report and recommendations and the report and recommendations of any child advocate appointed pursuant to Section 356.5; and shall consider the efforts or progress, or both, demonstrated by the parent or legal guardian and the extent to which he or she availed himself or herself of services provided, taking into account the particular barriers to a minor parent or a nonminor dependent parent, or an incarcerated, institutionalized, detained, or deported parents or legal guardians access to those court-mandated services and ability to maintain contact with his or her child.
(2)Regardless of whether the child is returned to a parent or legal guardian, the court shall specify the factual basis for its conclusion that the return would be detrimental or would not be detrimental. The court also shall make appropriate findings pursuant to subdivision (a) of Section 366; and, when relevant, shall order any additional services reasonably believed to facilitate the return of the child to the custody of his or her parent or legal guardian. The court shall also inform the parent or legal guardian that if the child cannot be returned home by the 12-month permanency hearing, a proceeding pursuant to Section 366.26 may be instituted. This section does not apply in a case in which, pursuant to Section 361.5, the court has ordered that reunification services shall not be provided.
(3)If the child was under three years of age on the date of the initial removal, or is a member of a sibling group described in subparagraph (C) of paragraph (1) of subdivision (a) of Section 361.5, and the court finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan, the court may schedule a hearing pursuant to Section 366.26 within 120 days. If, however, the court finds there is a substantial probability that the child, who was under three years of age on the date of initial removal or is a member of a sibling group described in subparagraph (C) of paragraph (1) of subdivision (a) of Section 361.5, may be returned to his or her parent or legal guardian within six months or that reasonable services have not been provided, the court shall continue the case to the 12-month permanency hearing.
(4)For the purpose of placing and maintaining a sibling group together in a permanent home, the court, in making its determination to schedule a hearing pursuant to Section 366.26 for some or all members of a sibling group, as described in subparagraph (C) of paragraph (1) of subdivision (a) of Section 361.5, shall review and consider the social workers report and recommendations. Factors the report shall address, and the court shall consider, may include, but need not be limited to, whether the sibling group was removed from parental care as a group, the closeness and strength of the sibling bond, the ages of the siblings, the appropriateness of maintaining the sibling group together, the detriment to the child if sibling ties are not maintained, the likelihood of finding a permanent home for the sibling group, whether the sibling group is currently placed together in a preadoptive home or has a concurrent plan goal of legal permanency in the same home, the wishes of each child whose age and physical and emotional condition permits a meaningful response, and the best interests of each child in the sibling group. The court shall specify the factual basis for its finding that it is in the best interests of each child to schedule a hearing pursuant to Section 366.26 within 120 days for some or all of the members of the sibling group.
(5)If the child was removed initially under subdivision (g) of Section 300 and the court finds by clear and convincing evidence that the whereabouts of the parent are still unknown, or the parent has failed to contact and visit the child, the court may schedule a hearing pursuant to Section 366.26 within 120 days. The court shall take into account any particular barriers to a parents ability to maintain contact with his or her child due to the parents incarceration, institutionalization, detention by the United States Department of Homeland Security, or deportation. If the court finds by clear and convincing evidence that the parent has been convicted of a felony indicating parental unfitness, the court may schedule a hearing pursuant to Section 366.26 within 120 days.
(6)If the child had been placed under court supervision with a previously noncustodial parent pursuant to Section 361.2, the court shall determine whether supervision is still necessary. The court may terminate supervision and transfer permanent custody to that parent, as provided for by paragraph (1) of subdivision (b) of Section 361.2.
(7)In all other cases, the court shall direct that any reunification services previously ordered shall continue to be offered to the parent or legal guardian pursuant to the time periods set forth in subdivision (a) of Section 361.5, provided that the court may modify the terms and conditions of those services.
(8)If the child is not returned to his or her parent or legal guardian, the court shall determine whether reasonable services that were designed to aid the parent or legal guardian in overcoming the problems that led to the initial removal and the continued custody of the child have been provided or offered to the parent or legal guardian. The court shall order that those services be initiated, continued, or terminated.
(f)(1)The permanency hearing shall be held no later than 12 months after the date the child entered foster care, as that date is determined pursuant to Section 361.49. At the permanency hearing, the court shall determine the permanent plan for the child, which shall include a determination of whether the child will be returned to the childs home and, if so, when, within the time limits of subdivision (a) of Section 361.5. After considering the relevant and admissible evidence, the court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment.
(A)At the permanency hearing, the court shall consider the criminal history, obtained pursuant to paragraph (1) of subdivision (f) of Section 16504.5, of the parent or legal guardian subsequent to the childs removal to the extent that the criminal record is substantially related to the welfare of the child or the parents or legal guardians ability to exercise custody and control regarding his or her child, provided that the parent or legal guardian agreed to submit fingerprint images to obtain criminal history information as part of the case plan. The court shall also determine whether reasonable services that were designed to aid the parent or legal guardian to overcome the problems that led to the initial removal and continued custody of the child have been provided or offered to the parent or legal guardian.
(B)The court shall also consider whether the child can be returned to the custody of his or her parent who is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with his or her parent. The fact that the parent is enrolled in a certified substance abuse treatment facility shall not be, for that reason alone, prima facie evidence of detriment. The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental.
(C)In making its determination, the court shall review and consider the social workers report and recommendations and the report and recommendations of any child advocate appointed pursuant to Section 356.5, shall consider the efforts or progress, or both, demonstrated by the parent or legal guardian and the extent to which he or she availed himself or herself of services provided, taking into account the particular barriers to a minor parent or a nonminor dependent parent, or an incarcerated, institutionalized, detained, or deported parents or legal guardians access to those court-mandated services and ability to maintain contact with his or her child, and shall make appropriate findings pursuant to subdivision (a) of Section 366.
(D)For each youth 16 years of age and older, the court shall also determine whether services have been made available to assist him or her in making the transition from foster care to successful adulthood.
(2)Regardless of whether the child is returned to his or her parent or legal guardian, the court shall specify the factual basis for its decision. If the child is not returned to a parent or legal guardian, the court shall specify the factual basis for its conclusion that the return would be detrimental. The court also shall make a finding pursuant to subdivision (a) of Section 366. If the child is not returned to his or her parent or legal guardian, the court shall consider, and state for the record, in-state and out-of-state placement options. If the child is placed out of the state, the court shall make a determination whether the out-of-state placement continues to be appropriate and in the best interests of the child.
(g)If the time period in which the court-ordered services were provided has met or exceeded the time period set forth in subparagraph (A), (B), or (C) of paragraph (1) of subdivision (a) of Section 361.5, as appropriate, and a child is not returned to the custody of a parent or legal guardian at the permanency hearing held pursuant to subdivision (f), the court shall do one of the following:
(1)Continue the case for up to six months for a permanency review hearing, provided that the hearing shall occur within 18 months of the date the child was originally taken from the physical custody of his or her parent or legal guardian. The court shall continue the case only if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time or that reasonable services have not been provided to the parent or legal guardian. For the purposes of this section, in order to find a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time, the court shall be required to find all of the following:
(A)That the parent or legal guardian has consistently and regularly contacted and visited with the child.
(B)That the parent or legal guardian has made significant progress in resolving problems that led to the childs removal from the home.
(C)The parent or legal guardian has demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the childs safety, protection, physical and emotional well-being, and special needs.
(i)For purposes of this subdivision, the courts decision to continue the case based on a finding or substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian is a compelling reason for determining that a hearing held pursuant to Section 366.26 is not in the best interests of the child.
(ii)The court shall inform the parent or legal guardian that if the child cannot be returned home by the next permanency review hearing, a proceeding pursuant to Section 366.26 may be instituted. The court shall not order that a hearing pursuant to Section 366.26 be held unless there is clear and convincing evidence that reasonable services have been provided or offered to the parent or legal guardian.
(2)Continue the case for up to six months for a permanency review hearing, provided that the hearing shall occur within 18 months of the date the child was originally taken from the physical custody of his or her parent or legal guardian, if the parent has been arrested and issued an immigration hold, detained by the United States Department of Homeland Security, or deported to his or her country of origin, and the court determines either that there is a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time or that reasonable services have not been provided to the parent or legal guardian.
(3)For purposes of paragraph (2), in order to find a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time, the court shall find all of the following:
(A)The parent or legal guardian has consistently and regularly contacted and visited with the child, taking into account any particular barriers to a parents ability to maintain contact with his or her child due to the parents arrest and receipt of an immigration hold, detention by the United States Department of Homeland Security, or deportation.
(B)The parent or legal guardian has made significant progress in resolving the problems that led to the childs removal from the home.
(C)The parent or legal guardian has demonstrated the capacity or ability both to complete the objectives of his or her treatment plan and to provide for the childs safety, protection, physical and emotional well-being, and special needs.
(4)Order that a hearing be held within 120 days, pursuant to Section 366.26, but only if the court does not continue the case to the permanency planning review hearing and there is clear and convincing evidence that reasonable services have been provided or offered to the parents or legal guardians. On and after January 1, 2012, a hearing pursuant to Section 366.26 shall not be ordered if the child is a nonminor dependent, unless the nonminor dependent is an Indian child and tribal customary adoption is recommended as the permanent plan.
(5)Order that the child remain in foster care, but only if the court finds by clear and convincing evidence, based upon the evidence already presented to it, including a recommendation by the State Department of Social Services when it is acting as an adoption agency or by a county adoption agency, that there is a compelling reason for determining that a hearing held pursuant to Section 366.26 is not in the best interests of the child because the child is not a proper subject for adoption and has no one willing to accept legal guardianship as of the hearing date. For purposes of this section, a recommendation by the State Department of Social Services when it is acting as an adoption agency or by a county adoption agency that adoption is not in the best interests of the child shall constitute a compelling reason for the courts determination. That recommendation shall be based on the present circumstances of the child and shall not preclude a different recommendation at a later date if the childs circumstances change. On and after January 1, 2012, the nonminor dependents legal status as an adult is in and of itself a compelling reason not to hold a hearing pursuant to Section 366.26. The court may order that a nonminor dependent who otherwise is eligible pursuant to Section 11403 remain in a planned, permanent living arrangement.
(A)The court shall make factual findings identifying any barriers to achieving the permanent plan as of the hearing date. When the child is under 16 years of age, the court shall order a permanent plan of return home, adoption, tribal customary adoption in the case of an Indian child, legal guardianship, or placement with a fit and willing relative, as appropriate. When the child is 16 years of age or older, or is a nonminor dependent, and no other permanent plan is appropriate at the time of the hearing, the court may order another planned permanent living arrangement, as described in paragraph (2) of subdivision (i) of Section 16501.
(B)If the court orders that a child who is 10 years of age or older remain in foster care, the court shall determine whether the agency has made reasonable efforts to maintain the childs relationships with individuals other than the childs siblings who are important to the child, consistent with the childs best interests, and may make any appropriate order to ensure that those relationships are maintained.
(C)If the child is not returned to his or her parent or legal guardian, the court shall consider, and state for the record, in-state and out-of-state options for permanent placement. If the child is placed out of the state, the court shall make a determination whether the out-of-state placement continues to be appropriate and in the best interests of the child.
(h)In any case in which the court orders that a hearing pursuant to Section 366.26 shall be held, it shall also order the termination of reunification services to the parent or legal guardian. The court shall continue to permit the parent or legal guardian to visit the child pending the hearing unless it finds that visitation would be detrimental to the child. The court shall make any other appropriate orders to enable the child to maintain relationships with individuals, other than the childs siblings, who are important to the child, consistent with the childs best interests. When the court orders a termination of reunification services to the parent or legal guardian, it shall also order that the childs caregiver receive the childs birth certificate in accordance with Sections 16010.4 and 16010.5. Additionally, when the court orders a termination of reunification services to the parent or legal guardian, it shall order, when appropriate, that a child who is 16 years of age or older receive his or her birth certificate.
(i)(1)Whenever a court orders that a hearing pursuant to Section 366.26, including, when, in consultation with the childs tribe, tribal customary adoption is recommended, shall be held, it shall direct the agency supervising the child and the county adoption agency, or the State Department of Social Services when it is acting as an adoption agency, to prepare an assessment that shall include:
(A)Current search efforts for an absent parent or parents or legal guardians.
(B)A review of the amount of and nature of any contact between the child and his or her parents or legal guardians and other members of his or her extended family since the time of placement. Although the extended family of each child shall be reviewed on a case-by-case basis, extended family for the purpose of this subparagraph shall include, but not be limited to, the childs siblings, grandparents, aunts, and uncles.
(C)An evaluation of the childs medical, developmental, scholastic, mental, and emotional status.
(D)A preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent or legal guardian, including the prospective tribal customary adoptive parent, particularly the caretaker, to include a social history including screening for criminal records and prior referrals for child abuse or neglect, the capability to meet the childs 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. The assessment of a legal guardian may also include the development of a plan for a successor guardian in the case of the incapacity or death of the guardian. In the event of the incapacity or death of an appointed guardian, the court may appoint an individual identified in the assessment submitted to the court as a successor guardian pursuant to the procedures for the appointment of a legal guardian in Section 366.26.
(E)The relationship of the child to any identified prospective adoptive parent or legal guardian, the duration and character of the relationship, the degree of attachment of the child to the prospective relative guardian or adoptive parent, the relatives or adoptive parents strong commitment to caring permanently for the child, the motivation for seeking adoption or guardianship, a statement from the child concerning placement and the adoption or guardianship, and whether the child, if over 12 years of age, has been consulted about the proposed relative guardianship arrangements, unless the childs age or physical, emotional, or other condition precludes his or her meaningful response, and if so, a description of the condition.
(F)A description of efforts to be made to identify a prospective adoptive parent or legal guardian, including, but not limited to, child-specific recruitment and listing on an adoption exchange within the state or out of the state.
(G)An analysis of the likelihood that the child will be adopted if parental rights are terminated.
(H)In the case of an Indian child, in addition to subparagraphs (A) to (G), inclusive, an assessment of the likelihood that the child will be adopted, when, in consultation with the childs tribe, a tribal customary adoption, as defined in Section 366.24, is recommended. If tribal customary adoption is recommended, the assessment shall include an analysis of both of the following:
(i)Whether tribal customary adoption would or would not be detrimental to the Indian child and the reasons for reaching that conclusion.
(ii)Whether the Indian child cannot or should not be returned to the home of the Indian parent or Indian custodian and the reasons for reaching that conclusion.
(2)(A)A relative caregivers preference for legal guardianship over adoption, if it is due to circumstances that do not include an unwillingness to accept legal or financial responsibility for the child, shall not constitute the sole basis for recommending removal of the child from the relative caregiver for purposes of adoptive placement.
(B)Regardless of his or her immigration status, a relative caregiver shall be given information regarding the permanency options of guardianship and adoption, including the long-term benefits and consequences of each option, prior to establishing legal guardianship or pursuing adoption. If the proposed permanent plan is guardianship with an approved relative caregiver for a minor eligible for aid under the Kin-GAP Program, as provided for in Article 4.7 (commencing with Section 11385) of Chapter 2 of Part 3 of Division 9, the relative caregiver shall be informed about the terms and conditions of the negotiated agreement pursuant to Section 11387 and shall agree to its execution prior to the hearing held pursuant to Section 366.26. A copy of the executed negotiated agreement shall be attached to the assessment.
(j)If, at any hearing held pursuant to Section 366.26, a guardianship is established for the minor with an approved relative caregiver, and juvenile court dependency is subsequently dismissed, the minor shall be eligible for aid under the Kin-GAP Program, as provided for in Article 4.5 (commencing with Section 11360) or Article 4.7 (commencing with Section 11385), as applicable, of Chapter 2 of Part 3 of Division 9.
(k)As used in this section, relative means an adult who is related to the minor by blood, adoption, or affinity within the fifth degree of kinship, including stepparents, stepsiblings, and all relatives whose status is preceded by the words great, great-great, or grand, or the spouse of any of those persons even if the marriage was terminated by death or dissolution. If the proposed permanent plan is guardianship with an approved relative caregiver for a minor eligible for aid under the Kin-GAP Program, as provided for in Article 4.7 (commencing with Section 11385) of Chapter 2 of Part 3 of Division 9, relative as used in this section has the same meaning as relative as defined in subdivision (c) of Section 11391.
(l)For purposes of this section, evidence of any of the following circumstances shall not, in and of itself, be deemed a failure to provide or offer reasonable services:
(1)The child has been placed with a foster family that is eligible to adopt a child, or has been placed in a preadoptive home.
(2)The case plan includes services to make and finalize a permanent placement for the child if efforts to reunify fail.
(3)Services to make and finalize a permanent placement for the child, if efforts to reunify fail, are provided concurrently with services to reunify the family.
SEC. 4.Section 366.22 of the Welfare and Institutions Code is amended to read:366.22.(a)(1)When a case has been continued pursuant to paragraph (1) or (2) of subdivision (g) of Section 366.21, the permanency review hearing shall occur within 18 months after the date the child was originally removed from the physical custody of his or her parent or legal guardian. After considering the admissible and relevant evidence, the court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment. At the permanency review hearing, the court shall consider the criminal history, obtained pursuant to paragraph (1) of subdivision (f) of Section 16504.5, of the parent or legal guardian subsequent to the childs removal, to the extent that the criminal record is substantially related to the welfare of the child or the parents or legal guardians ability to exercise custody and control regarding his or her child, provided that the parent or legal guardian agreed to submit fingerprint images to obtain criminal history information as part of the case plan. The court shall also consider whether the child can be returned to the custody of his or her parent who is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with his or her parent. The fact that the parent is enrolled in a certified substance abuse treatment facility shall not be, for that reason alone, prima facie evidence of detriment. The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental. In making its determination, the court shall review and consider the social workers report and recommendations and the report and recommendations of any child advocate appointed pursuant to Section 356.5; shall consider the efforts or progress, or both, demonstrated by the parent or legal guardian and the extent to which he or she availed himself or herself of services provided, taking into account the particular barriers of a minor parent or a nonminor dependent parent, or an incarcerated or institutionalized parents or legal guardians access to those court-mandated services and ability to maintain contact with his or her child; and shall make appropriate findings pursuant to subdivision (a) of Section 366.
(2)Whether or not the child is returned to his or her parent or legal guardian, the court shall specify the factual basis for its decision. If the child is not returned to a parent or legal guardian, the court shall specify the factual basis for its conclusion that return would be detrimental. If the child is not returned to his or her parent or legal guardian, the court shall consider, and state for the record, in-state and out-of-state options for the childs permanent placement. If the child is placed out of the state, the court shall make a determination whether the out-of-state placement continues to be appropriate and in the best interests of the child.
(3)Unless the conditions in subdivision (b) are met and the child is not returned to a parent or legal guardian at the permanency review hearing, the court shall order that a hearing be held pursuant to Section 366.26 in order to determine whether adoption, or, in the case of an Indian child, in consultation with the childs tribe, tribal customary adoption, guardianship, or continued placement in foster care is the most appropriate plan for the child. On and after January 1, 2012, a hearing pursuant to Section 366.26 shall not be ordered if the child is a nonminor dependent, unless the nonminor dependent is an Indian child, and tribal customary adoption is recommended as the permanent plan. However, if the court finds by clear and convincing evidence, based on the evidence already presented to it, including a recommendation by the State Department of Social Services when it is acting as an adoption agency or by a county adoption agency, that there is a compelling reason, as described in paragraph (5) of subdivision (g) of Section 366.21, for determining that a hearing held under Section 366.26 is not in the best interests of the child because the child is not a proper subject for adoption and has no one willing to accept legal guardianship as of the hearing date, the court may, only under these circumstances, order that the child remain in foster care with a permanent plan of return home, adoption, tribal customary adoption in the case of an Indian child, legal guardianship, or placement with a fit and willing relative, as appropriate. If the child is 16 years of age or older or is a nonminor dependent, and no other permanent plan is appropriate at the time of the hearing, the court may order another planned permanent living arrangement, as described in paragraph (2) of subdivision (i) of Section 16501. The court shall make factual findings identifying any barriers to achieving the permanent plan as of the hearing date. On and after January 1, 2012, the nonminor dependents legal status as an adult is in and of itself a compelling reason not to hold a hearing pursuant to Section 366.26. The court may order that a nonminor dependent who otherwise is eligible pursuant to Section 11403 remain in a planned, permanent living arrangement. If the court orders that a child who is 10 years of age or older remain in foster care, the court shall determine whether the agency has made reasonable efforts to maintain the childs relationships with individuals other than the childs siblings who are important to the child, consistent with the childs best interests, and may make any appropriate order to ensure that those relationships are maintained. The hearing shall be held no later than 120 days from the date of the permanency review hearing. The court shall also order termination of reunification services to the parent or legal guardian. The court shall continue to permit the parent or legal guardian to visit the child unless it finds that visitation would be detrimental to the child. The court shall determine whether reasonable services have been offered or provided to the parent or legal guardian. For purposes of this subdivision, evidence of any of the following circumstances shall not, in and of themselves, be deemed a failure to provide or offer reasonable services:
(A)The child has been placed with a foster family that is eligible to adopt a child, or has been placed in a preadoptive home.
(B)The case plan includes services to make and finalize a permanent placement for the child if efforts to reunify fail.
(C)Services to make and finalize a permanent placement for the child, if efforts to reunify fail, are provided concurrently with services to reunify the family.
(b)If the child is not returned to a parent or legal guardian at the permanency review hearing and the court determines by clear and convincing evidence that the best interests of the child would be met by the provision of additional reunification services to a parent or legal guardian who is making significant and consistent progress in a court-ordered residential substance abuse treatment program, a parent who was either a minor parent or a nonminor dependent parent at the time of the initial hearing making significant and consistent progress in establishing a safe home for the childs return, or a parent recently discharged from incarceration, institutionalization, or the custody of the United States Department of Homeland Security and making significant and consistent progress in establishing a safe home for the childs return, the court may continue the case for up to six months for a subsequent permanency review hearing, provided that the hearing shall occur within 24 months of the date the child was originally taken from the physical custody of his or her parent or legal guardian. The court shall continue the case only if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time or that reasonable services have not been provided to the parent or legal guardian. For the purposes of this section, in order to find a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time, the court shall be required to find all of the following:
(1)That the parent or legal guardian has consistently and regularly contacted and visited with the child.
(2)That the parent or legal guardian has made significant and consistent progress in the prior 18 months in resolving problems that led to the childs removal from the home.
(3)The parent or legal guardian has demonstrated the capacity and ability both to complete the objectives of his or her substance abuse treatment plan as evidenced by reports from a substance abuse provider as applicable, or complete a treatment plan postdischarge from incarceration, institutionalization, or detention, or following deportation to his or her country of origin and his or her return to the United States, and to provide for the childs safety, protection, physical and emotional well-being, and special needs.
For purposes of this subdivision, the courts decision to continue the case based on a finding or substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian is a compelling reason for determining that a hearing held pursuant to Section 366.26 is not in the best interests of the child.
The court shall inform the parent or legal guardian that if the child cannot be returned home by the subsequent permanency review hearing, a proceeding pursuant to Section 366.26 may be instituted. The court shall not order that a hearing pursuant to Section 366.26 be held unless there is clear and convincing evidence that reasonable services have been provided or offered to the parent or legal guardian.
(c)(1)Whenever a court orders that a hearing pursuant to Section 366.26, including when a tribal customary adoption is recommended, shall be held, it shall direct the agency supervising the child and the county adoption agency, or the State Department of Social Services when it is acting as an adoption agency, to prepare an assessment that shall include:
(A)Current search efforts for an absent parent or parents.
(B)A review of the amount of and nature of any contact between the child and his or her parents and other members of his or her extended family since the time of placement. Although the extended family of each child shall be reviewed on a case-by-case basis, extended family for the purposes of this subparagraph shall include, but not be limited to, the childs siblings, grandparents, aunts, and uncles.
(C)An evaluation of the childs medical, developmental, scholastic, mental, and emotional status.
(D) A preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent or legal guardian, particularly the caretaker, to include a social history including screening for criminal records and prior referrals for child abuse or neglect, the capability to meet the childs needs, and the understanding of the legal and financial rights and responsibilities of adoption and guardianship. If a proposed legal guardian is a relative of the minor, the assessment shall also consider, but need not be limited to, all of the factors specified in subdivision (a) of Section 361.3 and Section 361.4. The assessment of a legal guardian may also include the development of a plan for a successor guardian in the case of the incapacity or death of the guardian. In the event of the incapacity or death of an appointed guardian, the court may appoint an individual identified in the assessment submitted to the court as a successor guardian pursuant to the procedures for the appointment of a legal guardian in Section 366.26.
(E)The relationship of the child to any identified prospective adoptive parent or legal guardian, the duration and character of the relationship, the degree of attachment of the child to the prospective relative guardian or adoptive parent, the relatives or adoptive parents strong commitment to caring permanently for the child, the motivation for seeking adoption or legal guardianship, a statement from the child concerning placement and the adoption or legal guardianship, and whether the child, if over 12 years of age, has been consulted about the proposed relative guardianship arrangements, unless the childs 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 childs tribe, a tribal customary adoption, as defined in Section 366.24, is recommended. If tribal customary adoption is recommended, the assessment shall include an analysis of both of the following:
(i)Whether tribal customary adoption would or would not be detrimental to the Indian child and the reasons for reaching that conclusion.
(ii)Whether the Indian child cannot or should not be returned to the home of the Indian parent or Indian custodian and the reasons for reaching that conclusion.
(2)(A)A relative caregivers preference for legal guardianship over adoption, if it is due to circumstances that do not include an unwillingness to accept legal or financial responsibility for the child, shall not constitute the sole basis for recommending removal of the child from the relative caregiver for purposes of adoptive placement.
(B)Regardless of his or her immigration status, a relative caregiver shall be given information regarding the permanency options of guardianship and adoption, including the long-term benefits and consequences of each option, prior to establishing legal guardianship or pursuing adoption. If the proposed permanent plan is guardianship with an approved relative caregiver for a minor eligible for aid under the Kin-GAP Program, as provided for in Article 4.7 (commencing with Section 11385) of Chapter 2 of Part 3 of Division 9, the relative caregiver shall be informed about the terms and conditions of the negotiated agreement pursuant to Section 11387 and shall agree to its execution prior to the hearing held pursuant to Section 366.26. A copy of the executed negotiated agreement shall be attached to the assessment.
(d)This section shall become operative January 1, 1999. If at any hearing held pursuant to Section 366.26, a legal guardianship is established for the minor with an approved relative caregiver, and juvenile court dependency is subsequently dismissed, the minor shall be eligible for aid under the Kin-GAP Program, as provided for in Article 4.5 (commencing with Section 11360) or Article 4.7 (commencing with Section 11385), as applicable, of Chapter 2 of Part 3 of Division 9.
(e)As used in this section, relative means an adult who is related to the child by blood, adoption, or affinity within the fifth degree of kinship, including stepparents, stepsiblings, and all relatives whose status is preceded by the words great, great-great, or grand, or the spouse of any of those persons even if the marriage was terminated by death or dissolution. If the proposed permanent plan is guardianship with an approved relative caregiver for a minor eligible for aid under the Kin-GAP Program, as provided for in Article 4.7 (commencing with Section 11385) of Chapter 2 of Part 3 of Division 9, relative as used in this section has the same meaning as relative as defined in subdivision (c) of Section 11391.
SEC. 5.Section 366.25 of the Welfare and Institutions Code is amended to read:366.25.(a)(1)When a case has been continued pursuant to subdivision (b) of Section 366.22, the subsequent permanency review hearing shall occur within 24 months after the date the child was originally removed from the physical custody of his or her parent or legal guardian. After considering the relevant and admissible evidence, the court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment. At the subsequent permanency review hearing, the court shall consider the criminal history, obtained pursuant to paragraph (1) of subdivision (f) of Section 16504.5, of the parent or legal guardian subsequent to the childs removal to the extent that the criminal record is substantially related to the welfare of the child or parents or legal guardians ability to exercise custody and control regarding his or her child provided that the parent or legal guardian agreed to submit fingerprint images to obtain criminal history information as part of the case plan. The court shall also consider whether the child can be returned to the custody of a parent who is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with his or her parent. The fact that the parent is enrolled in a certified substance abuse treatment facility shall not be, for that reason alone, prima facie evidence of detriment. The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental. In making its determination, the court shall review and consider the social workers report and recommendations and the report and recommendations of any child advocate appointed pursuant to Section 356.5; shall consider the efforts or progress, or both, demonstrated by the parent or legal guardian and the extent to which he or she availed himself or herself of services provided; and shall make appropriate findings pursuant to subdivision (a) of Section 366.
(2)Whether or not the child is returned to his or her parent or legal guardian, the court shall specify the factual basis for its decision. If the child is not returned to a parent or legal guardian, the court shall specify the factual basis for its conclusion that return would be detrimental. If the child is not returned to his or her parent or legal guardian, the court shall consider and state for the record, in-state and out-of-state options for the childs permanent placement. If the child is placed out of the state, the court shall make a determination whether the out-of-state placement continues to be appropriate and in the best interests of the child.
(3)If the child is not returned to a parent or legal guardian at the subsequent permanency review hearing, the court shall order that a hearing be held pursuant to Section 366.26 in order to determine whether adoption, or, in the case of an Indian child, tribal customary adoption, guardianship, or, in the case of a child 16 years of age or older when no other permanent plan is appropriate, another planned permanent living arrangement is the most appropriate plan for the child. On and after January 1, 2012, a hearing pursuant to Section 366.26 shall not be ordered if the child is a nonminor dependent, unless the nonminor dependent is an Indian child and tribal customary adoption is recommended as the permanent plan. However, if the court finds by clear and convincing evidence, based on the evidence already presented to it, including a recommendation by the State Department of Social Services when it is acting as an adoption agency or by a county adoption agency, that there is a compelling reason, as described in paragraph (5) of subdivision (g) of Section 366.21, for determining that a hearing held under Section 366.26 is not in the best interest of the child because the child is not a proper subject for adoption or, in the case of an Indian child, tribal customary adoption, and has no one willing to accept legal guardianship as of the hearing date, then the court may, only under these circumstances, order that the child remain in foster care with a permanent plan of return home, adoption, tribal customary adoption in the case of an Indian child, legal guardianship, or placement with a fit and willing relative, as appropriate. If the child is 16 years of age or older or is a nonminor dependent, and no other permanent plan is appropriate at the time of the hearing, the court may order another planned permanent living arrangement, as described in paragraph (2) of subdivision (i) of Section 16501. The court shall make factual findings identifying any barriers to achieving the permanent plan as of the hearing date. On and after January 1, 2012, the nonminor dependents legal status as an adult is in and of itself a compelling reason not to hold a hearing pursuant to Section 366.26. The court may order that a nonminor dependent who otherwise is eligible pursuant to Section 11403 remain in a planned, permanent living arrangement. If the court orders that a child who is 10 years of age or older remain in foster care, the court shall determine whether the agency has made reasonable efforts to maintain the childs relationships with individuals other than the childs siblings who are important to the child, consistent with the childs best interests, and may make any appropriate order to ensure that those relationships are maintained. The hearing shall be held no later than 120 days from the date of the subsequent permanency review hearing. The court shall also order termination of reunification services to the parent or legal guardian. The court shall continue to permit the parent or legal guardian to visit the child unless it finds that visitation would be detrimental to the child. The court shall determine whether reasonable services have been offered or provided to the parent or legal guardian. For purposes of this paragraph, evidence of any of the following circumstances shall not, in and of themselves, be deemed a failure to provide or offer reasonable services:
(A)The child has been placed with a foster family that is eligible to adopt a child, or has been placed in a preadoptive home.
(B)The case plan includes services to make and finalize a permanent placement for the child if efforts to reunify fail.
(C)Services to make and finalize a permanent placement for the child, if efforts to reunify fail, are provided concurrently with services to reunify the family.
(b)(1)Whenever a court orders that a hearing pursuant to Section 366.26 shall be held, it shall direct the agency supervising the child and the county adoption agency, or the State Department of Social Services when it is acting as an adoption agency, to prepare an assessment that shall include:
(A)Current search efforts for an absent parent or parents.
(B)A review of the amount of, and nature of, any contact between the child and his or her parents and other members of his or her extended family since the time of placement. Although the extended family of each child shall be reviewed on a case-by-case basis, extended family for the purposes of this paragraph shall include, but not be limited to, the childs siblings, grandparents, aunts, and uncles.
(C)An evaluation of the childs medical, developmental, scholastic, mental, and emotional status.
(D)A preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent or legal guardian, including a prospective tribal customary adoptive parent, particularly the caretaker, to include a social history including screening for criminal records and prior referrals for child abuse or neglect, the capability to meet the childs needs, and the understanding of the legal and financial rights and responsibilities of adoption and guardianship. If a proposed legal guardian is a relative of the minor, the assessment shall also consider, but need not be limited to, all of the factors specified in subdivision (a) of Section 361.3 and in Section 361.4. The assessment of a legal guardian may also include the development of a plan for a successor guardian in the case of the incapacity or death of the guardian. In the event of the incapacity or death of an appointed guardian, the court may appoint an individual identified in the assessment submitted to the court as a successor guardian pursuant to the procedures for the appointment of a legal guardian in Section 366.26.
(E)The relationship of the child to any identified prospective adoptive parent or legal guardian, including a prospective tribal customary adoptive parent, the duration and character of the relationship, the degree of attachment of the child to the prospective relative guardian or adoptive parent, the relatives or adoptive parents strong commitment to caring permanently for the child, the motivation for seeking adoption or legal guardianship, a statement from the child concerning placement and the adoption or legal guardianship, and whether the child, if over 12 years of age, has been consulted about the proposed relative guardianship arrangements, unless the childs 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 childs tribe, a tribal customary adoption, as defined in Section 366.24, is recommended. If tribal customary adoption is recommended, the assessment shall include an analysis of both of the following:
(i)Whether tribal customary adoption would or would not be detrimental to the Indian child and the reasons for reaching that conclusion.
(ii)Whether the Indian child cannot or should not be returned to the home of the Indian parent or Indian custodian and the reasons for reaching that conclusion.
(2)(A)A relative caregivers preference for legal guardianship over adoption, if it is due to circumstances that do not include an unwillingness to accept legal or financial responsibility for the child, shall not constitute the sole basis for recommending removal of the child from the relative caregiver for purposes of adoptive placement.
(B)Regardless of his or her immigration status, a relative caregiver shall be given information regarding the permanency options of guardianship and adoption, including the long-term benefits and consequences of each option, prior to establishing legal guardianship or pursuing adoption. If the proposed permanent plan is guardianship with an approved relative caregiver for a minor eligible for aid under the Kin-GAP Program, as provided for in Article 4.7 (commencing with Section 11385) of Chapter 2 of Part 3 of Division 9, the relative caregiver shall be informed about the terms and conditions of the negotiated agreement pursuant to Section 11387 and shall agree to its execution prior to the hearing held pursuant to Section 366.26. A copy of the executed negotiated agreement shall be attached to the assessment.
(c)If, at any hearing held pursuant to Section 366.26, a guardianship is established for the minor with an approved relative caregiver, and juvenile court dependency is subsequently dismissed, the minor shall be eligible for aid under the Kin-GAP Program, as provided for in Article 4.5 (commencing with Section 11360) or Article 4.7 (commencing with Section 11385), as applicable, of Chapter 2 of Part 3 of Division 9.
(d)As used in this section, relative means an adult who is related to the minor by blood, adoption, or affinity within the fifth degree of kinship, including stepparents, stepsiblings, and all relatives whose status is preceded by the words great, great-great, or grand, or the spouse of any of those persons even if the marriage was terminated by death or dissolution. If the proposed permanent plan is guardianship with an approved relative caregiver for a minor eligible for aid under the Kin-GAP Program, as provided in Article 4.7 (commencing with Section 11385) of Chapter 2 of Part 3 of Division 9, relative as used in this section has the same meaning as relative as defined in subdivision (c) of Section 11391.
After receiving and considering the evidence on the proper disposition of the case, the juvenile court may enter judgment as follows:
(a)(1)Notwithstanding any other provision of law, if the court finds that the child is a person described by Section 300 and the parent has advised the court that the parent is not interested in family maintenance or family reunification services, it may, in addition to or in lieu of adjudicating the child a dependent child of the court, order a legal guardianship, appoint a legal guardian, and issue letters of guardianship, if the court determines that a guardianship is in the best interest of the child, provided the parent and the child agree to the guardianship, unless the childs age or physical, emotional, or mental condition prevents the childs meaningful response. The court shall advise the parent and the child that no reunification services will be provided as a result of the establishment of a guardianship. The proceeding for the appointment of a guardian shall be in the juvenile court.
Any(2)Any application for termination of guardianship shall be filed in juvenile court in a form as may be developed by the Judicial Council pursuant to Section 68511 of the Government Code. Sections 366.4 and 388 shall apply to this order of guardianship.
No(3)A person shall not be appointed a legal guardian under this section until an assessment as specified in subdivision (g) of Section 361.5 is read and considered by the court and reflected in the minutes of the court. The court may consider any plan for a successor guardian submitted to the court.
On(4)On and after the date that the director executes a declaration pursuant to Section 11217, if the court appoints an approved relative caregiver as the childs legal guardian, the child has been in the care of that approved relative for a period of six consecutive months under a voluntary placement agreement, and the child otherwise meets the conditions for federal financial participation, the child shall be eligible for aid under the Kin-GAP Program as provided in Article 4.7 (commencing with Section 11385) of Chapter 2. The nonfederally eligible child placed with an approved relative caregiver who is appointed as the childs legal guardian shall be eligible for aid under the state-funded Kin-GAP Program, as provided for in Article 4.5 (commencing with Section 11360) of Chapter 2.
The(5)The person responsible for preparing the assessment may be called and examined by any party to the guardianship proceeding.
(b)If the court finds that the child is a person described by Section 300, it may, without adjudicating the child a dependent child of the court, order that services be provided to keep the family together and place the child and the childs parent or guardian under the supervision of the social worker for a time period consistent with Section 301.
(c)If the family subsequently is unable or unwilling to cooperate with the services being provided, the social worker may file a petition with the juvenile court pursuant to Section 332 alleging that a previous petition has been sustained and that disposition pursuant to subdivision (b) has been ineffective in ameliorating the situation requiring the child welfare services. Upon hearing the petition, the court shall order either that the petition shall be dismissed or that a new disposition hearing shall be held pursuant to subdivision (d).
(d)If the court finds that the child is a person described by Section 300, it may order and adjudge the child to be a dependent child of the court.
SEC. 2.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 courts 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 parents or guardians custody, the juvenile court shall order the social worker to provide child welfare services to the child and the childs 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 parents or guardians 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 parents or guardians 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 childs 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 childs 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 childs 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 parents 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 childs, siblings, or half siblings 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 childs 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 courts 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 childs sibling or half sibling from his or her placement and refused to disclose the childs or childs siblings or half siblings whereabouts, refused to return physical custody of the child or childs sibling or half sibling to his or her placement, or refused to return physical custody of the child or childs 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 parents 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 childs attitude toward the implementation of family reunification services, the likelihood of the parents 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 parents access to those court-mandated services and ability to maintain contact with his or her child, and shall document this information in the childs 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, when appropriate.
(C)Visitation services, when 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 childs case plan the particular barriers to an incarcerated, institutionalized, or detained parents 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 sheriffs 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, Chapter 4 (commencing with Section 3410) of Title 2 of Part 3 of, the Penal Code, the court shall determine whether the parents participation in a program is in the childs 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, placement with a fit and willing relative, or another planned permanent living arrangement, or, in the case of an Indian child, in consultation with the childs 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 childs 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 childs siblings, grandparents, aunts, and uncles.
(C)An evaluation of the childs 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 childs 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. The assessment of a legal guardian may also include the development of a plan for a successor guardian in the case of the incapacity or death of the guardian. 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 relatives or adoptive parents 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 childs 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 childs tribe, a tribal customary adoption, as defined in Section 366.24, is recommended. If tribal customary adoption is recommended, the assessment shall include an analysis of both of the following:
(i)Whether tribal customary adoption would or would not be detrimental to the Indian child and the reasons for reaching that conclusion.
(ii)Whether the Indian child cannot or should not be returned to the home of the Indian parent or Indian custodian and the reasons for reaching that conclusion.
(2)(A)A relative caregivers 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 childs sibling or half sibling.
(2)The circumstances under which the abuse or harm was inflicted on the child or the childs sibling or half sibling.
(3)The severity of the emotional trauma suffered by the child or the childs 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 childs caregiver receive the childs 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.
SEC. 3.Section 366.21 of the Welfare and Institutions Code is amended to read:366.21.(a)Every hearing conducted by the juvenile court reviewing the status of a dependent child shall be placed on the appearance calendar. The court shall advise all persons present at the hearing of the date of the future hearing and of their right to be present and represented by counsel.
(b)Except as provided in Sections 294 and 295, notice of the hearing shall be provided pursuant to Section 293.
(c)At least 10 calendar days prior to the hearing, the social worker shall file a supplemental report with the court regarding the services provided or offered to the parent or legal guardian to enable him or her to assume custody and the efforts made to achieve legal permanence for the child if efforts to reunify fail, including, but not limited to, efforts to maintain relationships between a child who is 10 years of age or older and has been in out-of-home placement for six months or longer and individuals who are important to the child, consistent with the childs best interests; the progress made; and, where relevant, the prognosis for return of the child to the physical custody of his or her parent or legal guardian; and shall make his or her recommendation for disposition. If the child is a member of a sibling group described in subparagraph (C) of paragraph (1) of subdivision (a) of Section 361.5, the report and recommendation may also take into account those factors described in subdivision (e) relating to the childs sibling group. If the recommendation is not to return the child to a parent or legal guardian, the report shall specify why the return of the child would be detrimental to the child. The social worker shall provide the parent or legal guardian, counsel for the child, and any court-appointed child advocate with a copy of the report, including his or her recommendation for disposition, at least 10 calendar days prior to the hearing. In the case of a child removed from the physical custody of his or her parent or legal guardian, the social worker shall, at least 10 calendar days prior to the hearing, provide a summary of his or her recommendation for disposition to any foster parents, relative caregivers, and certified foster parents who have been approved for adoption by the State Department of Social Services when it is acting as an adoption agency or by a county adoption agency, community care facility, or foster family agency having the physical custody of the child. The social worker shall include a copy of the Judicial Council Caregiver Information Form (JV-290) with the summary of recommendations to the childs foster parents, relative caregivers, or foster parents approved for adoption, in the caregivers primary language when available, along with information on how to file the form with the court.
(d)Prior to any hearing involving a child in the physical custody of a community care facility or a foster family agency that may result in the return of the child to the physical custody of his or her parent or legal guardian, or in adoption or the creation of a legal guardianship, or in the case of an Indian child, in consultation with the childs tribe, tribal customary adoption, the facility or agency shall file with the court a report, or a Judicial Council Caregiver Information Form (JV-290), containing its recommendation for disposition. Prior to the hearing involving a child in the physical custody of a foster parent, a relative caregiver, or a certified foster parent who has been approved for adoption by the State Department of Social Services when it is acting as an adoption agency or by a county adoption agency, the foster parent, relative caregiver, or the certified foster parent who has been approved for adoption by the State Department of Social Services when it is acting as an adoption agency or by a county adoption agency, may file with the court a report containing his or her recommendation for disposition. The court shall consider the report and recommendation filed pursuant to this subdivision prior to determining any disposition.
(e)(1)At the review hearing held six months after the initial dispositional hearing, but no later than 12 months after the date the child entered foster care as determined in Section 361.49, whichever occurs earlier, after considering the admissible and relevant evidence, the court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment. At the hearing, the court shall consider the criminal history, obtained pursuant to paragraph (1) of subdivision (f) of Section 16504.5, of the parent or legal guardian subsequent to the childs removal to the extent that the criminal record is substantially related to the welfare of the child or the parents or guardians ability to exercise custody and control regarding his or her child, provided the parent or legal guardian agreed to submit fingerprint images to obtain criminal history information as part of the case plan. The court shall also consider whether the child can be returned to the custody of his or her parent who is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with his or her parent. The fact that the parent is enrolled in a certified substance abuse treatment facility shall not be, for that reason alone, prima facie evidence of detriment. The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental. In making its determination, the court shall review and consider the social workers report and recommendations and the report and recommendations of any child advocate appointed pursuant to Section 356.5; and shall consider the efforts or progress, or both, demonstrated by the parent or legal guardian and the extent to which he or she availed himself or herself of services provided, taking into account the particular barriers to a minor parent or a nonminor dependent parent, or an incarcerated, institutionalized, detained, or deported parents or legal guardians access to those court-mandated services and ability to maintain contact with his or her child.
(2)Regardless of whether the child is returned to a parent or legal guardian, the court shall specify the factual basis for its conclusion that the return would be detrimental or would not be detrimental. The court also shall make appropriate findings pursuant to subdivision (a) of Section 366; and, when relevant, shall order any additional services reasonably believed to facilitate the return of the child to the custody of his or her parent or legal guardian. The court shall also inform the parent or legal guardian that if the child cannot be returned home by the 12-month permanency hearing, a proceeding pursuant to Section 366.26 may be instituted. This section does not apply in a case in which, pursuant to Section 361.5, the court has ordered that reunification services shall not be provided.
(3)If the child was under three years of age on the date of the initial removal, or is a member of a sibling group described in subparagraph (C) of paragraph (1) of subdivision (a) of Section 361.5, and the court finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan, the court may schedule a hearing pursuant to Section 366.26 within 120 days. If, however, the court finds there is a substantial probability that the child, who was under three years of age on the date of initial removal or is a member of a sibling group described in subparagraph (C) of paragraph (1) of subdivision (a) of Section 361.5, may be returned to his or her parent or legal guardian within six months or that reasonable services have not been provided, the court shall continue the case to the 12-month permanency hearing.
(4)For the purpose of placing and maintaining a sibling group together in a permanent home, the court, in making its determination to schedule a hearing pursuant to Section 366.26 for some or all members of a sibling group, as described in subparagraph (C) of paragraph (1) of subdivision (a) of Section 361.5, shall review and consider the social workers report and recommendations. Factors the report shall address, and the court shall consider, may include, but need not be limited to, whether the sibling group was removed from parental care as a group, the closeness and strength of the sibling bond, the ages of the siblings, the appropriateness of maintaining the sibling group together, the detriment to the child if sibling ties are not maintained, the likelihood of finding a permanent home for the sibling group, whether the sibling group is currently placed together in a preadoptive home or has a concurrent plan goal of legal permanency in the same home, the wishes of each child whose age and physical and emotional condition permits a meaningful response, and the best interests of each child in the sibling group. The court shall specify the factual basis for its finding that it is in the best interests of each child to schedule a hearing pursuant to Section 366.26 within 120 days for some or all of the members of the sibling group.
(5)If the child was removed initially under subdivision (g) of Section 300 and the court finds by clear and convincing evidence that the whereabouts of the parent are still unknown, or the parent has failed to contact and visit the child, the court may schedule a hearing pursuant to Section 366.26 within 120 days. The court shall take into account any particular barriers to a parents ability to maintain contact with his or her child due to the parents incarceration, institutionalization, detention by the United States Department of Homeland Security, or deportation. If the court finds by clear and convincing evidence that the parent has been convicted of a felony indicating parental unfitness, the court may schedule a hearing pursuant to Section 366.26 within 120 days.
(6)If the child had been placed under court supervision with a previously noncustodial parent pursuant to Section 361.2, the court shall determine whether supervision is still necessary. The court may terminate supervision and transfer permanent custody to that parent, as provided for by paragraph (1) of subdivision (b) of Section 361.2.
(7)In all other cases, the court shall direct that any reunification services previously ordered shall continue to be offered to the parent or legal guardian pursuant to the time periods set forth in subdivision (a) of Section 361.5, provided that the court may modify the terms and conditions of those services.
(8)If the child is not returned to his or her parent or legal guardian, the court shall determine whether reasonable services that were designed to aid the parent or legal guardian in overcoming the problems that led to the initial removal and the continued custody of the child have been provided or offered to the parent or legal guardian. The court shall order that those services be initiated, continued, or terminated.
(f)(1)The permanency hearing shall be held no later than 12 months after the date the child entered foster care, as that date is determined pursuant to Section 361.49. At the permanency hearing, the court shall determine the permanent plan for the child, which shall include a determination of whether the child will be returned to the childs home and, if so, when, within the time limits of subdivision (a) of Section 361.5. After considering the relevant and admissible evidence, the court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment.
(A)At the permanency hearing, the court shall consider the criminal history, obtained pursuant to paragraph (1) of subdivision (f) of Section 16504.5, of the parent or legal guardian subsequent to the childs removal to the extent that the criminal record is substantially related to the welfare of the child or the parents or legal guardians ability to exercise custody and control regarding his or her child, provided that the parent or legal guardian agreed to submit fingerprint images to obtain criminal history information as part of the case plan. The court shall also determine whether reasonable services that were designed to aid the parent or legal guardian to overcome the problems that led to the initial removal and continued custody of the child have been provided or offered to the parent or legal guardian.
(B)The court shall also consider whether the child can be returned to the custody of his or her parent who is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with his or her parent. The fact that the parent is enrolled in a certified substance abuse treatment facility shall not be, for that reason alone, prima facie evidence of detriment. The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental.
(C)In making its determination, the court shall review and consider the social workers report and recommendations and the report and recommendations of any child advocate appointed pursuant to Section 356.5, shall consider the efforts or progress, or both, demonstrated by the parent or legal guardian and the extent to which he or she availed himself or herself of services provided, taking into account the particular barriers to a minor parent or a nonminor dependent parent, or an incarcerated, institutionalized, detained, or deported parents or legal guardians access to those court-mandated services and ability to maintain contact with his or her child, and shall make appropriate findings pursuant to subdivision (a) of Section 366.
(D)For each youth 16 years of age and older, the court shall also determine whether services have been made available to assist him or her in making the transition from foster care to successful adulthood.
(2)Regardless of whether the child is returned to his or her parent or legal guardian, the court shall specify the factual basis for its decision. If the child is not returned to a parent or legal guardian, the court shall specify the factual basis for its conclusion that the return would be detrimental. The court also shall make a finding pursuant to subdivision (a) of Section 366. If the child is not returned to his or her parent or legal guardian, the court shall consider, and state for the record, in-state and out-of-state placement options. If the child is placed out of the state, the court shall make a determination whether the out-of-state placement continues to be appropriate and in the best interests of the child.
(g)If the time period in which the court-ordered services were provided has met or exceeded the time period set forth in subparagraph (A), (B), or (C) of paragraph (1) of subdivision (a) of Section 361.5, as appropriate, and a child is not returned to the custody of a parent or legal guardian at the permanency hearing held pursuant to subdivision (f), the court shall do one of the following:
(1)Continue the case for up to six months for a permanency review hearing, provided that the hearing shall occur within 18 months of the date the child was originally taken from the physical custody of his or her parent or legal guardian. The court shall continue the case only if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time or that reasonable services have not been provided to the parent or legal guardian. For the purposes of this section, in order to find a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time, the court shall be required to find all of the following:
(A)That the parent or legal guardian has consistently and regularly contacted and visited with the child.
(B)That the parent or legal guardian has made significant progress in resolving problems that led to the childs removal from the home.
(C)The parent or legal guardian has demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the childs safety, protection, physical and emotional well-being, and special needs.
(i)For purposes of this subdivision, the courts decision to continue the case based on a finding or substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian is a compelling reason for determining that a hearing held pursuant to Section 366.26 is not in the best interests of the child.
(ii)The court shall inform the parent or legal guardian that if the child cannot be returned home by the next permanency review hearing, a proceeding pursuant to Section 366.26 may be instituted. The court shall not order that a hearing pursuant to Section 366.26 be held unless there is clear and convincing evidence that reasonable services have been provided or offered to the parent or legal guardian.
(2)Continue the case for up to six months for a permanency review hearing, provided that the hearing shall occur within 18 months of the date the child was originally taken from the physical custody of his or her parent or legal guardian, if the parent has been arrested and issued an immigration hold, detained by the United States Department of Homeland Security, or deported to his or her country of origin, and the court determines either that there is a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time or that reasonable services have not been provided to the parent or legal guardian.
(3)For purposes of paragraph (2), in order to find a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time, the court shall find all of the following:
(A)The parent or legal guardian has consistently and regularly contacted and visited with the child, taking into account any particular barriers to a parents ability to maintain contact with his or her child due to the parents arrest and receipt of an immigration hold, detention by the United States Department of Homeland Security, or deportation.
(B)The parent or legal guardian has made significant progress in resolving the problems that led to the childs removal from the home.
(C)The parent or legal guardian has demonstrated the capacity or ability both to complete the objectives of his or her treatment plan and to provide for the childs safety, protection, physical and emotional well-being, and special needs.
(4)Order that a hearing be held within 120 days, pursuant to Section 366.26, but only if the court does not continue the case to the permanency planning review hearing and there is clear and convincing evidence that reasonable services have been provided or offered to the parents or legal guardians. On and after January 1, 2012, a hearing pursuant to Section 366.26 shall not be ordered if the child is a nonminor dependent, unless the nonminor dependent is an Indian child and tribal customary adoption is recommended as the permanent plan.
(5)Order that the child remain in foster care, but only if the court finds by clear and convincing evidence, based upon the evidence already presented to it, including a recommendation by the State Department of Social Services when it is acting as an adoption agency or by a county adoption agency, that there is a compelling reason for determining that a hearing held pursuant to Section 366.26 is not in the best interests of the child because the child is not a proper subject for adoption and has no one willing to accept legal guardianship as of the hearing date. For purposes of this section, a recommendation by the State Department of Social Services when it is acting as an adoption agency or by a county adoption agency that adoption is not in the best interests of the child shall constitute a compelling reason for the courts determination. That recommendation shall be based on the present circumstances of the child and shall not preclude a different recommendation at a later date if the childs circumstances change. On and after January 1, 2012, the nonminor dependents legal status as an adult is in and of itself a compelling reason not to hold a hearing pursuant to Section 366.26. The court may order that a nonminor dependent who otherwise is eligible pursuant to Section 11403 remain in a planned, permanent living arrangement.
(A)The court shall make factual findings identifying any barriers to achieving the permanent plan as of the hearing date. When the child is under 16 years of age, the court shall order a permanent plan of return home, adoption, tribal customary adoption in the case of an Indian child, legal guardianship, or placement with a fit and willing relative, as appropriate. When the child is 16 years of age or older, or is a nonminor dependent, and no other permanent plan is appropriate at the time of the hearing, the court may order another planned permanent living arrangement, as described in paragraph (2) of subdivision (i) of Section 16501.
(B)If the court orders that a child who is 10 years of age or older remain in foster care, the court shall determine whether the agency has made reasonable efforts to maintain the childs relationships with individuals other than the childs siblings who are important to the child, consistent with the childs best interests, and may make any appropriate order to ensure that those relationships are maintained.
(C)If the child is not returned to his or her parent or legal guardian, the court shall consider, and state for the record, in-state and out-of-state options for permanent placement. If the child is placed out of the state, the court shall make a determination whether the out-of-state placement continues to be appropriate and in the best interests of the child.
(h)In any case in which the court orders that a hearing pursuant to Section 366.26 shall be held, it shall also order the termination of reunification services to the parent or legal guardian. The court shall continue to permit the parent or legal guardian to visit the child pending the hearing unless it finds that visitation would be detrimental to the child. The court shall make any other appropriate orders to enable the child to maintain relationships with individuals, other than the childs siblings, who are important to the child, consistent with the childs best interests. When the court orders a termination of reunification services to the parent or legal guardian, it shall also order that the childs caregiver receive the childs birth certificate in accordance with Sections 16010.4 and 16010.5. Additionally, when the court orders a termination of reunification services to the parent or legal guardian, it shall order, when appropriate, that a child who is 16 years of age or older receive his or her birth certificate.
(i)(1)Whenever a court orders that a hearing pursuant to Section 366.26, including, when, in consultation with the childs tribe, tribal customary adoption is recommended, shall be held, it shall direct the agency supervising the child and the county adoption agency, or the State Department of Social Services when it is acting as an adoption agency, to prepare an assessment that shall include:
(A)Current search efforts for an absent parent or parents or legal guardians.
(B)A review of the amount of and nature of any contact between the child and his or her parents or legal guardians and other members of his or her extended family since the time of placement. Although the extended family of each child shall be reviewed on a case-by-case basis, extended family for the purpose of this subparagraph shall include, but not be limited to, the childs siblings, grandparents, aunts, and uncles.
(C)An evaluation of the childs medical, developmental, scholastic, mental, and emotional status.
(D)A preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent or legal guardian, including the prospective tribal customary adoptive parent, particularly the caretaker, to include a social history including screening for criminal records and prior referrals for child abuse or neglect, the capability to meet the childs 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. The assessment of a legal guardian may also include the development of a plan for a successor guardian in the case of the incapacity or death of the guardian.
(E)The relationship of the child to any identified prospective adoptive parent or legal guardian, the duration and character of the relationship, the degree of attachment of the child to the prospective relative guardian or adoptive parent, the relatives or adoptive parents strong commitment to caring permanently for the child, the motivation for seeking adoption or guardianship, a statement from the child concerning placement and the adoption or guardianship, and whether the child, if over 12 years of age, has been consulted about the proposed relative guardianship arrangements, unless the childs age or physical, emotional, or other condition precludes his or her meaningful response, and if so, a description of the condition.
(F)A description of efforts to be made to identify a prospective adoptive parent or legal guardian, including, but not limited to, child-specific recruitment and listing on an adoption exchange within the state or out of the state.
(G)An analysis of the likelihood that the child will be adopted if parental rights are terminated.
(H)In the case of an Indian child, in addition to subparagraphs (A) to (G), inclusive, an assessment of the likelihood that the child will be adopted, when, in consultation with the childs tribe, a tribal customary adoption, as defined in Section 366.24, is recommended. If tribal customary adoption is recommended, the assessment shall include an analysis of both of the following:
(i)Whether tribal customary adoption would or would not be detrimental to the Indian child and the reasons for reaching that conclusion.
(ii)Whether the Indian child cannot or should not be returned to the home of the Indian parent or Indian custodian and the reasons for reaching that conclusion.
(2)(A)A relative caregivers preference for legal guardianship over adoption, if it is due to circumstances that do not include an unwillingness to accept legal or financial responsibility for the child, shall not constitute the sole basis for recommending removal of the child from the relative caregiver for purposes of adoptive placement.
(B)Regardless of his or her immigration status, a relative caregiver shall be given information regarding the permanency options of guardianship and adoption, including the long-term benefits and consequences of each option, prior to establishing legal guardianship or pursuing adoption. If the proposed permanent plan is guardianship with an approved relative caregiver for a minor eligible for aid under the Kin-GAP Program, as provided for in Article 4.7 (commencing with Section 11385) of Chapter 2 of Part 3 of Division 9, the relative caregiver shall be informed about the terms and conditions of the negotiated agreement pursuant to Section 11387 and shall agree to its execution prior to the hearing held pursuant to Section 366.26. A copy of the executed negotiated agreement shall be attached to the assessment.
(j)If, at any hearing held pursuant to Section 366.26, a guardianship is established for the minor with an approved relative caregiver, and juvenile court dependency is subsequently dismissed, the minor shall be eligible for aid under the Kin-GAP Program, as provided for in Article 4.5 (commencing with Section 11360) or Article 4.7 (commencing with Section 11385), as applicable, of Chapter 2 of Part 3 of Division 9.
(k)As used in this section, relative means an adult who is related to the minor by blood, adoption, or affinity within the fifth degree of kinship, including stepparents, stepsiblings, and all relatives whose status is preceded by the words great, great-great, or grand, or the spouse of any of those persons even if the marriage was terminated by death or dissolution. If the proposed permanent plan is guardianship with an approved relative caregiver for a minor eligible for aid under the Kin-GAP Program, as provided for in Article 4.7 (commencing with Section 11385) of Chapter 2 of Part 3 of Division 9, relative as used in this section has the same meaning as relative as defined in subdivision (c) of Section 11391.
(l)For purposes of this section, evidence of any of the following circumstances shall not, in and of itself, be deemed a failure to provide or offer reasonable services:
(1)The child has been placed with a foster family that is eligible to adopt a child, or has been placed in a preadoptive home.
(2)The case plan includes services to make and finalize a permanent placement for the child if efforts to reunify fail.
(3)Services to make and finalize a permanent placement for the child, if efforts to reunify fail, are provided concurrently with services to reunify the family.
SEC. 4.Section 366.22 of the Welfare and Institutions Code is amended to read:366.22.(a)(1)When a case has been continued pursuant to paragraph (1) or (2) of subdivision (g) of Section 366.21, the permanency review hearing shall occur within 18 months after the date the child was originally removed from the physical custody of his or her parent or legal guardian. After considering the admissible and relevant evidence, the court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment. At the permanency review hearing, the court shall consider the criminal history, obtained pursuant to paragraph (1) of subdivision (f) of Section 16504.5, of the parent or legal guardian subsequent to the childs removal, to the extent that the criminal record is substantially related to the welfare of the child or the parents or legal guardians ability to exercise custody and control regarding his or her child, provided that the parent or legal guardian agreed to submit fingerprint images to obtain criminal history information as part of the case plan. The court shall also consider whether the child can be returned to the custody of his or her parent who is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with his or her parent. The fact that the parent is enrolled in a certified substance abuse treatment facility shall not be, for that reason alone, prima facie evidence of detriment. The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental. In making its determination, the court shall review and consider the social workers report and recommendations and the report and recommendations of any child advocate appointed pursuant to Section 356.5; shall consider the efforts or progress, or both, demonstrated by the parent or legal guardian and the extent to which he or she availed himself or herself of services provided, taking into account the particular barriers of a minor parent or a nonminor dependent parent, or an incarcerated or institutionalized parents or legal guardians access to those court-mandated services and ability to maintain contact with his or her child; and shall make appropriate findings pursuant to subdivision (a) of Section 366.
(2)Whether or not the child is returned to his or her parent or legal guardian, the court shall specify the factual basis for its decision. If the child is not returned to a parent or legal guardian, the court shall specify the factual basis for its conclusion that return would be detrimental. If the child is not returned to his or her parent or legal guardian, the court shall consider, and state for the record, in-state and out-of-state options for the childs permanent placement. If the child is placed out of the state, the court shall make a determination whether the out-of-state placement continues to be appropriate and in the best interests of the child.
(3)Unless the conditions in subdivision (b) are met and the child is not returned to a parent or legal guardian at the permanency review hearing, the court shall order that a hearing be held pursuant to Section 366.26 in order to determine whether adoption, or, in the case of an Indian child, in consultation with the childs tribe, tribal customary adoption, guardianship, or continued placement in foster care is the most appropriate plan for the child. On and after January 1, 2012, a hearing pursuant to Section 366.26 shall not be ordered if the child is a nonminor dependent, unless the nonminor dependent is an Indian child, and tribal customary adoption is recommended as the permanent plan. However, if the court finds by clear and convincing evidence, based on the evidence already presented to it, including a recommendation by the State Department of Social Services when it is acting as an adoption agency or by a county adoption agency, that there is a compelling reason, as described in paragraph (5) of subdivision (g) of Section 366.21, for determining that a hearing held under Section 366.26 is not in the best interests of the child because the child is not a proper subject for adoption and has no one willing to accept legal guardianship as of the hearing date, the court may, only under these circumstances, order that the child remain in foster care with a permanent plan of return home, adoption, tribal customary adoption in the case of an Indian child, legal guardianship, or placement with a fit and willing relative, as appropriate. If the child is 16 years of age or older or is a nonminor dependent, and no other permanent plan is appropriate at the time of the hearing, the court may order another planned permanent living arrangement, as described in paragraph (2) of subdivision (i) of Section 16501. The court shall make factual findings identifying any barriers to achieving the permanent plan as of the hearing date. On and after January 1, 2012, the nonminor dependents legal status as an adult is in and of itself a compelling reason not to hold a hearing pursuant to Section 366.26. The court may order that a nonminor dependent who otherwise is eligible pursuant to Section 11403 remain in a planned, permanent living arrangement. If the court orders that a child who is 10 years of age or older remain in foster care, the court shall determine whether the agency has made reasonable efforts to maintain the childs relationships with individuals other than the childs siblings who are important to the child, consistent with the childs best interests, and may make any appropriate order to ensure that those relationships are maintained. The hearing shall be held no later than 120 days from the date of the permanency review hearing. The court shall also order termination of reunification services to the parent or legal guardian. The court shall continue to permit the parent or legal guardian to visit the child unless it finds that visitation would be detrimental to the child. The court shall determine whether reasonable services have been offered or provided to the parent or legal guardian. For purposes of this subdivision, evidence of any of the following circumstances shall not, in and of themselves, be deemed a failure to provide or offer reasonable services:
(A)The child has been placed with a foster family that is eligible to adopt a child, or has been placed in a preadoptive home.
(B)The case plan includes services to make and finalize a permanent placement for the child if efforts to reunify fail.
(C)Services to make and finalize a permanent placement for the child, if efforts to reunify fail, are provided concurrently with services to reunify the family.
(b)If the child is not returned to a parent or legal guardian at the permanency review hearing and the court determines by clear and convincing evidence that the best interests of the child would be met by the provision of additional reunification services to a parent or legal guardian who is making significant and consistent progress in a court-ordered residential substance abuse treatment program, a parent who was either a minor parent or a nonminor dependent parent at the time of the initial hearing making significant and consistent progress in establishing a safe home for the childs return, or a parent recently discharged from incarceration, institutionalization, or the custody of the United States Department of Homeland Security and making significant and consistent progress in establishing a safe home for the childs return, the court may continue the case for up to six months for a subsequent permanency review hearing, provided that the hearing shall occur within 24 months of the date the child was originally taken from the physical custody of his or her parent or legal guardian. The court shall continue the case only if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time or that reasonable services have not been provided to the parent or legal guardian. For the purposes of this section, in order to find a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time, the court shall be required to find all of the following:
(1)That the parent or legal guardian has consistently and regularly contacted and visited with the child.
(2)That the parent or legal guardian has made significant and consistent progress in the prior 18 months in resolving problems that led to the childs removal from the home.
(3)The parent or legal guardian has demonstrated the capacity and ability both to complete the objectives of his or her substance abuse treatment plan as evidenced by reports from a substance abuse provider as applicable, or complete a treatment plan postdischarge from incarceration, institutionalization, or detention, or following deportation to his or her country of origin and his or her return to the United States, and to provide for the childs safety, protection, physical and emotional well-being, and special needs.
For purposes of this subdivision, the courts decision to continue the case based on a finding or substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian is a compelling reason for determining that a hearing held pursuant to Section 366.26 is not in the best interests of the child.
The court shall inform the parent or legal guardian that if the child cannot be returned home by the subsequent permanency review hearing, a proceeding pursuant to Section 366.26 may be instituted. The court shall not order that a hearing pursuant to Section 366.26 be held unless there is clear and convincing evidence that reasonable services have been provided or offered to the parent or legal guardian.
(c)(1)Whenever a court orders that a hearing pursuant to Section 366.26, including when a tribal customary adoption is recommended, shall be held, it shall direct the agency supervising the child and the county adoption agency, or the State Department of Social Services when it is acting as an adoption agency, to prepare an assessment that shall include:
(A)Current search efforts for an absent parent or parents.
(B)A review of the amount of and nature of any contact between the child and his or her parents and other members of his or her extended family since the time of placement. Although the extended family of each child shall be reviewed on a case-by-case basis, extended family for the purposes of this subparagraph shall include, but not be limited to, the childs siblings, grandparents, aunts, and uncles.
(C)An evaluation of the childs medical, developmental, scholastic, mental, and emotional status.
(D) A preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent or legal guardian, particularly the caretaker, to include a social history including screening for criminal records and prior referrals for child abuse or neglect, the capability to meet the childs needs, and the understanding of the legal and financial rights and responsibilities of adoption and guardianship. If a proposed legal guardian is a relative of the minor, the assessment shall also consider, but need not be limited to, all of the factors specified in subdivision (a) of Section 361.3 and Section 361.4. The assessment of a legal guardian may also include the development of a plan for a successor guardian in the case of the incapacity or death of the guardian.
(E)The relationship of the child to any identified prospective adoptive parent or legal guardian, the duration and character of the relationship, the degree of attachment of the child to the prospective relative guardian or adoptive parent, the relatives or adoptive parents strong commitment to caring permanently for the child, the motivation for seeking adoption or legal guardianship, a statement from the child concerning placement and the adoption or legal guardianship, and whether the child, if over 12 years of age, has been consulted about the proposed relative guardianship arrangements, unless the childs 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 childs tribe, a tribal customary adoption, as defined in Section 366.24, is recommended. If tribal customary adoption is recommended, the assessment shall include an analysis of both of the following:
(i)Whether tribal customary adoption would or would not be detrimental to the Indian child and the reasons for reaching that conclusion.
(ii)Whether the Indian child cannot or should not be returned to the home of the Indian parent or Indian custodian and the reasons for reaching that conclusion.
(2)(A)A relative caregivers preference for legal guardianship over adoption, if it is due to circumstances that do not include an unwillingness to accept legal or financial responsibility for the child, shall not constitute the sole basis for recommending removal of the child from the relative caregiver for purposes of adoptive placement.
(B)Regardless of his or her immigration status, a relative caregiver shall be given information regarding the permanency options of guardianship and adoption, including the long-term benefits and consequences of each option, prior to establishing legal guardianship or pursuing adoption. If the proposed permanent plan is guardianship with an approved relative caregiver for a minor eligible for aid under the Kin-GAP Program, as provided for in Article 4.7 (commencing with Section 11385) of Chapter 2 of Part 3 of Division 9, the relative caregiver shall be informed about the terms and conditions of the negotiated agreement pursuant to Section 11387 and shall agree to its execution prior to the hearing held pursuant to Section 366.26. A copy of the executed negotiated agreement shall be attached to the assessment.
(d)This section shall become operative January 1, 1999. If at any hearing held pursuant to Section 366.26, a legal guardianship is established for the minor with an approved relative caregiver, and juvenile court dependency is subsequently dismissed, the minor shall be eligible for aid under the Kin-GAP Program, as provided for in Article 4.5 (commencing with Section 11360) or Article 4.7 (commencing with Section 11385), as applicable, of Chapter 2 of Part 3 of Division 9.
(e)As used in this section, relative means an adult who is related to the child by blood, adoption, or affinity within the fifth degree of kinship, including stepparents, stepsiblings, and all relatives whose status is preceded by the words great, great-great, or grand, or the spouse of any of those persons even if the marriage was terminated by death or dissolution. If the proposed permanent plan is guardianship with an approved relative caregiver for a minor eligible for aid under the Kin-GAP Program, as provided for in Article 4.7 (commencing with Section 11385) of Chapter 2 of Part 3 of Division 9, relative as used in this section has the same meaning as relative as defined in subdivision (c) of Section 11391.
SEC. 5.Section 366.25 of the Welfare and Institutions Code is amended to read:366.25.(a)(1)When a case has been continued pursuant to subdivision (b) of Section 366.22, the subsequent permanency review hearing shall occur within 24 months after the date the child was originally removed from the physical custody of his or her parent or legal guardian. After considering the relevant and admissible evidence, the court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment. At the subsequent permanency review hearing, the court shall consider the criminal history, obtained pursuant to paragraph (1) of subdivision (f) of Section 16504.5, of the parent or legal guardian subsequent to the childs removal to the extent that the criminal record is substantially related to the welfare of the child or parents or legal guardians ability to exercise custody and control regarding his or her child provided that the parent or legal guardian agreed to submit fingerprint images to obtain criminal history information as part of the case plan. The court shall also consider whether the child can be returned to the custody of a parent who is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with his or her parent. The fact that the parent is enrolled in a certified substance abuse treatment facility shall not be, for that reason alone, prima facie evidence of detriment. The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental. In making its determination, the court shall review and consider the social workers report and recommendations and the report and recommendations of any child advocate appointed pursuant to Section 356.5; shall consider the efforts or progress, or both, demonstrated by the parent or legal guardian and the extent to which he or she availed himself or herself of services provided; and shall make appropriate findings pursuant to subdivision (a) of Section 366.
(2)Whether or not the child is returned to his or her parent or legal guardian, the court shall specify the factual basis for its decision. If the child is not returned to a parent or legal guardian, the court shall specify the factual basis for its conclusion that return would be detrimental. If the child is not returned to his or her parent or legal guardian, the court shall consider and state for the record, in-state and out-of-state options for the childs permanent placement. If the child is placed out of the state, the court shall make a determination whether the out-of-state placement continues to be appropriate and in the best interests of the child.
(3)If the child is not returned to a parent or legal guardian at the subsequent permanency review hearing, the court shall order that a hearing be held pursuant to Section 366.26 in order to determine whether adoption, or, in the case of an Indian child, tribal customary adoption, guardianship, or, in the case of a child 16 years of age or older when no other permanent plan is appropriate, another planned permanent living arrangement is the most appropriate plan for the child. On and after January 1, 2012, a hearing pursuant to Section 366.26 shall not be ordered if the child is a nonminor dependent, unless the nonminor dependent is an Indian child and tribal customary adoption is recommended as the permanent plan. However, if the court finds by clear and convincing evidence, based on the evidence already presented to it, including a recommendation by the State Department of Social Services when it is acting as an adoption agency or by a county adoption agency, that there is a compelling reason, as described in paragraph (5) of subdivision (g) of Section 366.21, for determining that a hearing held under Section 366.26 is not in the best interest of the child because the child is not a proper subject for adoption or, in the case of an Indian child, tribal customary adoption, and has no one willing to accept legal guardianship as of the hearing date, then the court may, only under these circumstances, order that the child remain in foster care with a permanent plan of return home, adoption, tribal customary adoption in the case of an Indian child, legal guardianship, or placement with a fit and willing relative, as appropriate. If the child is 16 years of age or older or is a nonminor dependent, and no other permanent plan is appropriate at the time of the hearing, the court may order another planned permanent living arrangement, as described in paragraph (2) of subdivision (i) of Section 16501. The court shall make factual findings identifying any barriers to achieving the permanent plan as of the hearing date. On and after January 1, 2012, the nonminor dependents legal status as an adult is in and of itself a compelling reason not to hold a hearing pursuant to Section 366.26. The court may order that a nonminor dependent who otherwise is eligible pursuant to Section 11403 remain in a planned, permanent living arrangement. If the court orders that a child who is 10 years of age or older remain in foster care, the court shall determine whether the agency has made reasonable efforts to maintain the childs relationships with individuals other than the childs siblings who are important to the child, consistent with the childs best interests, and may make any appropriate order to ensure that those relationships are maintained. The hearing shall be held no later than 120 days from the date of the subsequent permanency review hearing. The court shall also order termination of reunification services to the parent or legal guardian. The court shall continue to permit the parent or legal guardian to visit the child unless it finds that visitation would be detrimental to the child. The court shall determine whether reasonable services have been offered or provided to the parent or legal guardian. For purposes of this paragraph, evidence of any of the following circumstances shall not, in and of themselves, be deemed a failure to provide or offer reasonable services:
(A)The child has been placed with a foster family that is eligible to adopt a child, or has been placed in a preadoptive home.
(B)The case plan includes services to make and finalize a permanent placement for the child if efforts to reunify fail.
(C)Services to make and finalize a permanent placement for the child, if efforts to reunify fail, are provided concurrently with services to reunify the family.
(b)(1)Whenever a court orders that a hearing pursuant to Section 366.26 shall be held, it shall direct the agency supervising the child and the county adoption agency, or the State Department of Social Services when it is acting as an adoption agency, to prepare an assessment that shall include:
(A)Current search efforts for an absent parent or parents.
(B)A review of the amount of, and nature of, any contact between the child and his or her parents and other members of his or her extended family since the time of placement. Although the extended family of each child shall be reviewed on a case-by-case basis, extended family for the purposes of this paragraph shall include, but not be limited to, the childs siblings, grandparents, aunts, and uncles.
(C)An evaluation of the childs medical, developmental, scholastic, mental, and emotional status.
(D)A preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent or legal guardian, including a prospective tribal customary adoptive parent, particularly the caretaker, to include a social history including screening for criminal records and prior referrals for child abuse or neglect, the capability to meet the childs needs, and the understanding of the legal and financial rights and responsibilities of adoption and guardianship. If a proposed legal guardian is a relative of the minor, the assessment shall also consider, but need not be limited to, all of the factors specified in subdivision (a) of Section 361.3 and in Section 361.4. The assessment of a legal guardian may also include the development of a plan for a successor guardian in the case of the incapacity or death of the guardian.
(E)The relationship of the child to any identified prospective adoptive parent or legal guardian, including a prospective tribal customary adoptive parent, the duration and character of the relationship, the degree of attachment of the child to the prospective relative guardian or adoptive parent, the relatives or adoptive parents strong commitment to caring permanently for the child, the motivation for seeking adoption or legal guardianship, a statement from the child concerning placement and the adoption or legal guardianship, and whether the child, if over 12 years of age, has been consulted about the proposed relative guardianship arrangements, unless the childs 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 childs tribe, a tribal customary adoption, as defined in Section 366.24, is recommended. If tribal customary adoption is recommended, the assessment shall include an analysis of both of the following:
(i)Whether tribal customary adoption would or would not be detrimental to the Indian child and the reasons for reaching that conclusion.
(ii)Whether the Indian child cannot or should not be returned to the home of the Indian parent or Indian custodian and the reasons for reaching that conclusion.
(2)(A)A relative caregivers preference for legal guardianship over adoption, if it is due to circumstances that do not include an unwillingness to accept legal or financial responsibility for the child, shall not constitute the sole basis for recommending removal of the child from the relative caregiver for purposes of adoptive placement.
(B)Regardless of his or her immigration status, a relative caregiver shall be given information regarding the permanency options of guardianship and adoption, including the long-term benefits and consequences of each option, prior to establishing legal guardianship or pursuing adoption. If the proposed permanent plan is guardianship with an approved relative caregiver for a minor eligible for aid under the Kin-GAP Program, as provided for in Article 4.7 (commencing with Section 11385) of Chapter 2 of Part 3 of Division 9, the relative caregiver shall be informed about the terms and conditions of the negotiated agreement pursuant to Section 11387 and shall agree to its execution prior to the hearing held pursuant to Section 366.26. A copy of the executed negotiated agreement shall be attached to the assessment.
(c)If, at any hearing held pursuant to Section 366.26, a guardianship is established for the minor with an approved relative caregiver, and juvenile court dependency is subsequently dismissed, the minor shall be eligible for aid under the Kin-GAP Program, as provided for in Article 4.5 (commencing with Section 11360) or Article 4.7 (commencing with Section 11385), as applicable, of Chapter 2 of Part 3 of Division 9.
(d)As used in this section, relative means an adult who is related to the minor by blood, adoption, or affinity within the fifth degree of kinship, including stepparents, stepsiblings, and all relatives whose status is preceded by the words great, great-great, or grand, or the spouse of any of those persons even if the marriage was terminated by death or dissolution. If the proposed permanent plan is guardianship with an approved relative caregiver for a minor eligible for aid under the Kin-GAP Program, as provided in Article 4.7 (commencing with Section 11385) of Chapter 2 of Part 3 of Division 9, relative as used in this section has the same meaning as relative as defined in subdivision (c) of Section 11391.
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Date
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Status
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|---|---|
| Sep 26, 2017 | Chaptered by Secretary of State. Chapter 307, Statutes of 2017. |
| Sep 26, 2017 | Approved by the Governor. |
| Sep 12, 2017 | Enrolled and presented to the Governor at 3 p.m. |
| Sep 7, 2017 | Assembly amendments concurred in. (Ayes 39. Noes 0.) Ordered to engrossing and enrolling. |
| Sep 6, 2017 | Ordered to special consent calendar. |
| Sep 5, 2017 | In Senate. Concurrence in Assembly amendments pending. |
| Sep 5, 2017 | Read third time. Passed. Ordered to the Senate. |
| Aug 28, 2017 | Read third time and amended. |
| Aug 21, 2017 | Action rescinded whereby the bill was read a third time, passed, and ordered to the Senate. |
| Jul 20, 2017 | In Assembly. Held at Desk. |
| Jul 20, 2017 | Withdrawn from engrossing and enrolling. |
| Jul 6, 2017 | In Senate. Ordered to engrossing and enrolling. |
| Jul 6, 2017 | Read third time. Passed. Ordered to the Senate. |
| Jun 29, 2017 | Read second time. Ordered to consent calendar. |
| Jun 28, 2017 | From committee: Do pass. Ordered to consent calendar. (Ayes 14. Noes 0.) (June 28). |
| Jun 20, 2017 | From committee: Do pass and re-refer to Com. on APPR. with recommendation: To consent calendar. (Ayes 11. Noes 0.) (June 20). Re-referred to Com. on APPR. |
| Jun 14, 2017 | From committee: Do pass and re-refer to Com. on JUD. with recommendation: To consent calendar. (Ayes 6. Noes 0.) (June 13). Re-referred to Com. on JUD. |
| Jun 1, 2017 | Referred to Coms. on HUM. S. and JUD. |
| May 16, 2017 | In Assembly. Read first time. Held at Desk. |
| May 15, 2017 | Read third time. Passed. (Ayes 39. Noes 0. Page 1073.) Ordered to the Assembly. |
| May 9, 2017 | Read second time. Ordered to consent calendar. |
| May 8, 2017 | From committee: Be ordered to second reading pursuant to Senate Rule 28.8 and ordered to consent calendar. |
| May 4, 2017 | Set for hearing May 15. |
| May 3, 2017 | May 8 hearing postponed by committee. |
| May 1, 2017 | Set for hearing May 8. |
| Apr 20, 2017 | Read second time and amended. Re-referred to Com. on APPR. |
| Apr 19, 2017 | From committee: Do pass as amended and re-refer to Com. on APPR. with recommendation: To consent calendar. (Ayes 7. Noes 0. Page 746.) (April 18). |
| Apr 7, 2017 | Set for hearing April 18. |
| Apr 5, 2017 | From committee: Do pass and re-refer to Com. on JUD. with recommendation: To consent calendar. (Ayes 4. Noes 0. Page 625.) (April 4). Re-referred to Com. on JUD. |
| Mar 1, 2017 | Set for hearing April 4. |
| Feb 23, 2017 | Referred to Coms. on HUMAN S. and JUD. |
| Feb 16, 2017 | From printer. May be acted upon on or after March 18. |
| Feb 15, 2017 | Introduced. Read first time. To Com. on RLS. for assignment. To print. |
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Date
|
Description
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Location
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Votes
|
|
|---|---|---|---|---|
| Sep 7, 2017 | Special Consent Calendar # SB438 | Senate Floor |
Passed |
|
| Sep 5, 2017 | SB 438 Roth Senate Third Reading By CERVANTES | Assembly Floor |
Passed |
|
| Jul 6, 2017 | SB 438 Roth Consent Calendar Second Day Regular Session | Assembly Floor |
Passed |
|
| Jun 28, 2017 | Do pass. To Consent Calendar. | Assembly Standing Committee on Appropriations |
Passed |
|
| Jun 20, 2017 | Do pass and be re-referred to the Committee on [Appropriations] with recommendation: To Consent Calendar | Assembly Standing Committee on Judiciary |
Passed |
|
| Jun 13, 2017 | Do pass and be re-referred to the Committee on [Judiciary] with recommendation: To Consent Calendar | Assembly Standing Committee on Human Services |
Passed |
|
| May 15, 2017 | Consent Calendar 2nd SB438 | Senate Floor |
Passed |
|
| Apr 18, 2017 | Do pass as amended, but first amend, and re-refer to the Committee on [Appropriations] with the recommendation: To Consent Calendar | Senate Standing Committee on Judiciary |
Passed |
|
| Apr 4, 2017 | Do pass, but first be re-referred to the Committee on [Judiciary] with the recommendation: To Consent Calendar | Senate Standing Committee on Human Services |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| California State Association Of Counties | ** Support | Sep 6, 2017 |
| County of Riverside | ** Support | Sep 6, 2017 |
| County Of San Diego | ** Support | Sep 6, 2017 |
| County of Santa Clara | ** Support | Sep 6, 2017 |
| County Welfare Directors Association | ** Support | Sep 6, 2017 |
| LIUNA Locals 777 & 792 | ** Support | Sep 6, 2017 |
| National Association of Social Workers | ** Support | Sep 6, 2017 |
| National Association Of Social Workers, California Chapter | ** Support | Jun 16, 2017 |
| Rural County Representatives of California | ** Support | Sep 6, 2017 |
| Santa Clara County Board of Supervisors | ** Support | Jun 16, 2017 |
| Urban Counties of California | ** Support | Sep 6, 2017 |
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | SB |
UNFINISHED BUSINESS
Bill No: SB 438
:
SENATE HUMAN SERVICES COMMITTEE: 4-0, 4/4/17
AYES: Wiener, Glazer, Newman, Nguyen
NO VOTE RECORDED: Berryhill
SENATE JUDICIARY COMMITTEE: 7-0, 4/18/17
AYES: Jackson, Moorlach, Anderson, Hertzberg, Monning, Stern, Wieckowski
SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8
SENATE FLOOR: 39-0, 5/15/17 (Consent)
AYES: Allen, Anderson, Atkins, Bates, Beall, Berryhill, Bradford, Cannella, De León, Dodd, Fuller, Gaines, Galgiani, Glazer, Hernandez, Hertzberg, Hill, Hueso, Jackson, Lara, Leyva, McGuire, Mendoza, Mitchell, Monning, Moorlach, Morrell, Newman, Nguyen, Nielsen, Pan, Portantino, Roth, Skinner, Stern, Stone, Wieckowski, Wiener, Wilk
NO VOTE RECORDED: Vidak
ASSEMBLY FLOOR: 76-0, 9/5/17 - See last page for vote
DIGEST:
This bill authorizes the assessment of a legal guardian for a foster child to also include the naming of a prospective successor guardian if one is identified. This bill, in the event of the incapacity or death of an appointed guardian, authorizes the named successor guardian to be assessed and appointed pursuant to the existing procedures that govern the appointment of a legal guardian.
Assembly Amendments
relocate the authorization to name a prospective successor guardian from several distinct points in the judicial process to a more general section governing judicial process in dependency cases; and clarify that a named successor guardian must be assessed and appointed by the court. Additional amendments add language to avoid chaptering conflicts with AB 976 (Berman).
Existing law:
- Places the care of a child who has been removed from his or her parents or guardian under the jurisdiction of the juvenile court and defines abuse and neglect criteria for such removal.
- Establishes a state and local system of child welfare services, including foster care, for children who have been adjudged by the court to be at risk or have been abused or neglected, as specified.
- Authorizes the court to order a legal guardianship, appoint a legal guardian, and issue letters of guardianship, if the court determines that a guardianship is in the best interest of the child.
- Mandates a series of court hearings to review the child’s status and parents’ progress to reunify with the child, and, if reunification does not succeed, to terminate parental rights, and requires the court to consider various options for the child at these hearings, including whether to appoint a legal guardian.
- Requires that an agency supervising a foster child prepare an assessment prior to a hearing to terminate parental rights when a parent has voluntarily relinquished the child, when a child is removed from a parent due to delinquency and cannot return home, or when a guardianship order is established, that includes among other things:
- Current search efforts for an absent parent or parents and notification of a noncustodial parent.
- 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.
- An evaluation of the child’s medical, developmental, scholastic, mental, and emotional status.
- A preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent or guardian, including the prospective tribal customary adoptive parent, 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, as specified.
- The child’s relationship to any identified prospective adoptive parent or guardian, as specified, 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 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 other facts.
- Requires a court that orders a hearing to consider termination of parental rights after reunification services have been tried and in situations where additional reunification services are provided to direct the agency supervising the child and the county or state adoption agency to prepare an assessment of the eligibility and commitment of any identified prospective adoptive parents or legal guardians, as specified.
- Requires that termination of the guardianship with a kinship guardian shall terminate eligibility for Kin-GAP payments, as specified, except in a situation where a successor kinship guardian is appointed and due to the death or incapacity of the kinship guardian and the successor guardian is named in the kinship guardianship assistance agreement or amendment to the agreement. Waives the mandated six months of placement prior to Kin-GAP payments being provided if the successor guardian has been assessed, as specified.
- Allows a court to make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of a dependent child, including medical treatment, subject to further order of the court.
- Authorizes the court, in order to provide stable, permanent homes for all children who are dependents of the juvenile court, to make findings and orders related to the termination of parental rights, tribal customary adoption, legal guardianship, or adoption of the youth, as specified.
- Requires that an agency supervising a foster child prepare an assessment prior to a hearing to terminate parental rights when a parent has voluntarily relinquished the child, when a child is removed from a parent due to delinquency and cannot return home, or when a guardianship order is established, that includes: efforts made to locate absent or noncustodial parents; a review of any contact between the child and his or her parents and other family members, as specified; evaluation of the child's medical, developmental, scholastic, mental, and emotional status; a preliminary assessment of any identified prospective adoptive parent or guardian, to include a social history including criminal records and prior referrals for child abuse or neglect, ability to meet the child's needs, and the understanding of the legal and financial rights and responsibilities of adoption and guardianship, as specified; and the relationship of the child to any identified prospective adoptive parent or guardian, nature of the relationship, attachment level of the child to the prospective relative guardian or adoptive parent, the relative's or adoptive parent's 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 other facts.
This bill:
- Permits that the court-required assessment of a prospective adoptive parent or guardian for a foster child to include the naming of a prospective successor guardian, if one is identified.
- Permits, in the event of the incapacity or death of the appointed guardian, the court named successor guardian to be assessed and appointed.
- Contains language to avoid chaptering conflicts should this bill and AB 976 both be signed by the Governor.
Background
California’s child welfare system protects children at risk of child abuse and neglect or exploitation by providing intensive services to families in order to keep them together, or by determining that out-of-home placement is the only safe option for a child. When a child is removed from home, the child welfare agency arranges for and monitors temporary or permanent placement of the child in the safest and least restrictive environment possible.
Approximately 64,000 children are in out-of-home foster care placement through the child welfare system according to data produced by UC Berkeley’s Child Welfare Indicators Web site. Numerous national studies have documented the poor outcomes of children who are in the child welfare system, including increased rates of chronic health problems, developmental delays and disabilities, mental health needs, and substance abuse problems. Many youth have experienced traumatic events that lead to symptoms such as depression, behavior problems, hypersensitivity, and emotional difficulties, and 25 percent of youth who age-out of foster care experience Post-Traumatic Stress Disorder; double the rate of U.S. war veterans, according to the report.
Guardianship. Caregivers can assume legal guardianship of a child in out-of-home care without termination of parental rights, as is required for an adoption. According to a brief published by the US Administration on Children Youth and Families, guardianship is most frequently used when relative caregivers wish to provide a permanent home for the child and maintain relationships with extended family members, especially when efforts to reunite the child with his or her family have been unsuccessful and permanency through adoption is either not possible or not appropriate.
Approximately 37 States, Guam, and the Virgin Islands specifically provide for guardianship with kin as a permanency goal for children in out-of-home care. Some 6,200 children – or roughly 10 percent of the child welfare caseload – were placed with guardians, according to the Child Welfare Indicators Web site, and another 21,000 are placed with relatives outside of a guardianship arrangement. Nationally, about 7 percent of children in the child welfare system exit to guardianship, a percentage that has grown steadily over the past 15 years, according to US child welfare data compiled by the Annie Casey Foundation.
Kinship Guardianship Assistance Payment (Kin-GAP). The Kinship Guardianship Assistance Payment program (SB 1901, Chapter 1055, Statutes of 1998) was established for children exiting the juvenile court dependency system to live with a relative legal guardian. Assembly Bill 1808 (Assembly Budget Committee, Chapter 75, Statutes of 2006) extended the provisions of the Kin-GAP program to probation youth exiting the delinquency system to live with a related guardian. According to data released this January with the Governor’s Budget, approximately 16,000 youth are in Kinship Guardianship care and receiving assistance payments which are equivalent to a basic foster care rate.
Movement to Kin-GAP is not automatic. The court, with a recommendation from the county social worker or probation officer, has discretion about whether termination of court involvement is in the child's best interest. Relative caregiver's participation in Kin-GAP is strictly voluntary, and not mandated by any regulations or statutes, and each guardian must be assessed prior to guardianship being awarded. In order to qualify for Kin-GAP, a child must be under the jurisdiction of the juvenile court, have had a kinship guardianship established by the court, and have been living for at least six months in the home of the guardian or prospective guardian, among other qualifications.
Successor Guardian. The Preventing Sex Trafficking and Strengthening Families Act (Public Law (P.L.) 113-183) of 2014 includes language that encourages naming a successor guardian in case a relative guardian dies or becomes unable to care for the child. The new federal law requires continuation of Kin-GAP if the relative guardian dies or is incapacitated and a successor guardian is named in the agreement, or any amendments to the agreement.
In response to the federal statute, California amended Kin-GAP statutory guidelines to require Kin-GAP payments continue to a successor guardian if the reason for the appointment of the successor guardian is the death or incapacity of the kinship guardian, and other circumstances apply (SB 794, Committee on Human Services, Chapter 425, Statutes of 2015).
Continuum of Care Reform. Following a three-year stakeholder process to reconsider how and when California places foster children in long-term congregate care, the state outlined a comprehensive reform of the system of placements and services. “California’s Child Welfare Continuum of Care Reform,” envisioned new models of care for foster youth, including more intensive services, providing needed treatment and services in homes rather than in group care, and a significant decrease in reliance on group homes. AB 403 (Stone, Chapter 773, Statutes of 2015) began enacting these reforms.
As a result, CDSS, the county welfare directors and advocates say there is a significantly increased need for relatives, guardians and foster families to care for these children. Recent Legislative efforts have focused on foster care recruitment and retention. Creating a successor guardian could increase the safety net for children and guardians and decrease the pressure to find homes for foster youth.
FISCAL EFFECT: Appropriation: Fiscal Com.: Local:
According to the Assembly Appropriations Committee, minor and absorbable costs to the courts.
County of Riverside (source)
California State Association of Counties
County of San Diego
County of Santa Clara
County Welfare Directors Association
LIUNA Locals 777 & 792
National Association of Social Workers
Rural County Representatives of California
Urban Counties of California
None received
ASSEMBLY FLOOR: 76-0, 9/5/17
AYES: Acosta, Aguiar-Curry, Travis Allen, Arambula, Baker, Berman, Bigelow, Bloom, Bocanegra, Bonta, Brough, Burke, Caballero, Calderon, Cervantes, Chau, Chávez, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dababneh, Dahle, Daly, Eggman, Flora, Fong, Frazier, Friedman, Gallagher, Cristina Garcia, Gipson, Gloria, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Quirk, Quirk-Silva, Reyes, Rodriguez, Rubio, Salas, Santiago, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon
NO VOTE RECORDED: Eduardo Garcia, Ridley-Thomas, Steinorth
9/6/17 9:20:34
**** END ****
SENATE THIRD READING
STR Bill Id:SB 438
Author:(Roth)
As Amended Ver:August 28, 2017
Majority vote
SENATE VOTE: 39-0
Committee | Votes | Ayes | Noes |
Human Services | 6-0 | Rubio, Choi, Arambula, Reyes, Mark Stone, Thurmond |
|
Judiciary | 11-0 | Mark Stone, Cunningham, Chau, Chiu, Cristina Garcia, Holden, Kalra, Kiley, Maienschein, Reyes, Ting |
|
Appropriations | 14-0 | Gonzalez Fletcher, Bigelow, Bloom, Bocanegra, Bonta, Limón, Chau, Eggman, Fong, Friedman, Gallagher, Muratsuchi, Obernolte, Reyes |
|
SUMMARY: Allows the court to consider any plan for a successor guardian submitted to the court, and allows the court to appoint an individual who was previously identified in an assessment in the event that the initial guardian becomes incapacitated or dies.
Specifically, this bill:
- Allows the preliminary assessment of a prospective adoptive parent or guardian contained in the mandatory assessment prepared for a dispositional or review hearing by the agency supervising a child and the county adoption agency, or the Department of Social Services (DSS) when it is acting as an adoption agency, to include the name of a prospective successor guardian, if one is identified, and allows, in the event of the incapacity or death of the appointed guardian, the assessment and appointment of the named successor guardian.
- Makes technical changes.
- Makes chaptering out amendments to avoid chaptering conflicts with AB 976 (Berman) of the current legislative session.
EXISTING LAW:
- Establishes a state and local system of child welfare services, including foster care, for children who have been adjudged by the court to be at risk of being abused or neglected or to have been abused or neglected, as specified. (Welfare and institutions Code (WIC) Section 202)
- States that the purpose of foster care law is to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, neglected, or exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of harm. (WIC Section 300.2)
- States the intent of the Legislature to preserve and strengthen a child's family ties whenever possible and to reunify a foster youth with his or her biological family whenever possible, or to provide a permanent placement alternative, such as adoption or guardianship. (WIC Section 16000)
- Requires a social worker, within 30 days of taking a child into temporary custody or whenever appropriate to identify and locate all adults who are related to the child by blood, adoption, or affinity within the fifth degree of kinship and provide for the purposes of informing them of their right to participate in the care and placement of the child, as specified. (WIC Section 309(e))
- Requires preferential consideration be given to a request by a relative to have the child placed with the relative if the child has been removed from the physical custody of the child's parent(s). (WIC Section 361.3(a))
- Allows a court to make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of a dependent child, including medical treatment, subject to further order of the court. (WIC Section 362(a))
- Authorizes the court, in order to provide stable, permanent homes for all children who are dependents of the juvenile court, to make findings and orders related to the termination of parental rights, tribal customary adoption, legal guardianship, or adoption of the youth, as specified. (WIC Section 366.26 et seq.)
- Requires that an agency supervising a foster child prepare an assessment prior to a hearing to terminate parental rights when a parent has voluntarily relinquished the child, when a child is removed from a parent due to delinquency and cannot return home, or when a guardianship order is established, that includes: efforts made to locate absent or noncustodial parents; a review of any contact between the child and his or her parents and other family members, as specified; evaluation of the child's medical, developmental, scholastic, mental, and emotional status; a preliminary assessment of any identified prospective adoptive parent or guardian, to include a social history including criminal records and prior referrals for child abuse or neglect, ability to meet the child's needs, and the understanding of the legal and financial rights and responsibilities of adoption and guardianship, as specified; and the relationship of the child to any identified prospective adoptive parent or guardian, nature of the relationship, attachment level of the child to the prospective relative guardian or adoptive parent, the relative's or adoptive parent's 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 other facts. (WIC Section 361.5(g)(1))
- Requires termination of Kin-GAP eligibility upon termination of the guardianship with a kinship guardian, except in certain circumstances, as specified. Further specifies that if a successor guardian is appointed and is also a kinship guardian, the successor guardian shall be entitled to receive Kin-GAP on behalf of the child, as specified. (WIC 11386(i))
FISCAL EFFECT: According to the Assembly Appropriations Committee, on June 28, 2017, this bill may result in minor and absorbable costs to the courts.
COMMENTS:
Child Welfare Services: The purpose of California's Child Welfare Services (CWS) system is to protect children from abuse and neglect and provide for their health and safety. When children are identified as being at risk of abuse, neglect or abandonment, county juvenile courts hold legal jurisdiction and children are served by the CWS system through the appointment of a social worker. Through this system, there are multiple opportunities for the custody of the child, or his or her placement outside of the home, to be evaluated, reviewed and determined by the judicial system, in consultation with the child's social worker, to help provide the best possible services to the child. The CWS system seeks to help children who have been removed from their homes reunify with their parents or guardians, whenever appropriate, or unite them with other individuals they consider to be family. There are currently close to 61,000 children and youth in California's child welfare system.
Dependency court procedure: Historically, it has been the policy of California that when a child is removed from his or her parent's or parents' custody, preserving familial ties is of the utmost importance. As such, social workers and county welfare agencies are often tasked with finding appropriate placements with relative caregivers, including another parent, grandparents, siblings or nonrelative extended family members.
When a child is removed from his or her parent's or parents' custody, he or she is temporarily placed within the jurisdiction of the child welfare system until a determination about the child's welfare is made. Within 48 hours of being taken into temporary custody, a child's social worker must file a petition with the court requesting a detention hearing to determine if further detention of the child is in order. If further detention is required, the court must hold a jurisdictional hearing where, if the allegations of child abuse and neglect are substantiated, the child is removed from the custody of his or her parents and deemed a dependent of the juvenile court. Finally, a disposition hearing determines the parameters of the family reunification plan, including where and with whom the child will live, be it with relatives or in another setting.
Legal guardianship: According to DSS, guardianship is most frequently used by relative caregivers who wish to provide a permanent home for a child and maintain relationships with extended family members. Guardianship is often utilized when reunification efforts between the child and his or her family have been unsuccessful and permanency through adoption is not a desirable option. Unlike adoption requirements, caregivers can assume legal guardianship of a child in out-of-home care without terminating parental rights.
Regardless of whether a guardianship is established in lieu of juvenile court dependency or as part of a dependency permanent plan, current law requires that a social worker provide a written assessment of the prospective guardian that discusses the appropriateness of a guardianship. The court must also review the assessment and determine that the proposed guardianship is in the best interest of the child. The assessment is required to include details regarding: due diligence in locating and notifying absent parents, the duration and character of the relationship and the degree of attachment of the child to the prospective guardian, and the prospective guardian's strong commitment to caring permanently for the child and their motivation for seeking guardianship, among others.
Kinship Guardian Assistance Payment (Kin-GAP): Kin-GAP is a cash aid program designed to support foster children who have been placed in long-term foster care with a relative caregiver. While children in foster care are eligible for monthly foster care payments and support services, some relative caregivers prefer a greater sense of permanency and autonomy over living arrangements. Kin-GAP was first established by SB 1901 (McPherson), Chapter 1055, Statutes of 1998, and provided a compromise by permitting youth to remain eligible for monthly maintenance payments equal to the county foster care family home rate, while simultaneously providing the freedom of a permanent placement. Later, AB 1808 (Budget Committee), Chapter 75, Statutes of 2006 extended the Kin-GAP program to children whose juvenile court ward-ship is terminated in favor of guardianship with a relative caregiver. Kin-GAP provides payments as income directly to the child, not the caregiver, and consists of both cash aid and Medi-Cal benefits.
Successor guardian appointment: On September 29, 2014 the Preventing Sex Trafficking and Strengthening Families Act (Public Law 113-183) was signed into law. The Act sought to strengthen permanency options for children in the child welfare system and encourages the designation of a successor guardian in the original guardianship assistance agreement that is required for guardianship. With a successor guardian already named in the agreement, that person may immediately begin caring for the child and receive guardianship assistance payments thereby preventing the child from returning to foster care in order to remain eligible for guardianship assistance payments.
In response to this, SB 794 (Human Services Committee), Chapter 425, Statutes of 2015, amended state statute and specified that Kin-GAP payments shall continue to be made to a successor guardian if the appointment of the successor guardian is due to the death or incapacity of the original kinship guardian.
Need for this bill: According to the author's office, "This bill would address a subset of the dependents in the care and custody of the state child welfare departments- children in legal guardianship placements. This bill would allow the assessment of legal guardians to include the development of a plan for a successor guardian in the case of the incapacity or death of the guardian."
PRIOR LEGISLATION:
AB 404 (Stone) of the current legislative session, will further Continuum of Care Reform efforts made by AB 403(Stone), Chapter 773, Statutes of 2015 and AB 1997 (Stone), Chapter 612, Statutes of 2016. This bill is currently on suspense in the Senate Appropriations Committee.
AB 1997 (Stone), Chapter 612, Statutes of 2016, furthered Continuum of Care Reform efforts.
AB 403 (Stone), Chapter 773, Statutes of 2015, implemented Continuum of Care Reform recommendations to better serve children and youth in California's child welfare services system.
SB 794 (Committee on Human Services), Chapter 425, Statutes of 2015, allowed a successor kinship guardian to receive Kin-GAP, if the prior kinship guardian dies or is incapacitated.
H.R. 4980 (Camp), 2014, Public Law 113-183, also known as the Preventing Sex Trafficking and Strengthening Families Act of 2014, encouraged the designation of a successor guardian in the original guardianship assistance agreement.
SB 1901 (McPherson), Chapter 1055, Statutes of 1998, established the Kinship Guardianship Assistance Program in California.
Analysis Prepared by: Kelsy Castillo / HUM. S. / (916) 319-2089 FN: 0001463
SENATE THIRD READING
STR Bill Id:SB 438
Author:(Roth)
As Amended Ver:April 20, 2017
Majority vote
SENATE VOTE: 39-0
Committee | Votes | Ayes | Noes |
Human Services | 6-0 | Rubio, Choi, Arambula, Reyes, Mark Stone, Thurmond | |
Judiciary | 11-0 | Mark Stone, Cunningham, Chau, Chiu, Cristina Garcia, Holden, Kalra, Kiley, Maienschein, Reyes, Ting | |
Appropriations | 14-0 | Gonzalez Fletcher, Bigelow, Bloom, Bocanegra, Bonta, Limón, Chau, Eggman, Fong, Friedman, Gallagher, Muratsuchi, Obernolte, Reyes |
SUMMARY: Allows the court to consider any plan for a successor guardian submitted to the court, and allows the court to appoint an individual who was previously identified in an assessment in the event that the initial guardian becomes incapacitated or dies.
Specifically, this bill:
- Allows the juvenile court, when entering judgment subsequent to receipt and consideration of evidence, to consider any plan for a successor guardian submitted to the court.
- Authorizes the court, when entering judgment subsequent to receipt and consideration of evidence, in the event of the incapacity or death of an appointed guardian, to appoint an individual who was previously identified in the assessment submitted to the court pursuant to current law as a successor guardian, as specified.
- Allows the preliminary assessment of a prospective adoptive parent or guardian contained in the mandatory assessment prepared for a dispositional or review hearing by the agency supervising a child and the county adoption agency, or the Department of Social Services (DSS) when it is acting as an adoption agency, to also include the development of a plan for a successor guardian in the case of the incapacity or death of the guardian and further, permits the court to appoint an individual identified in the assessment submitted to the court, as specified.
- Makes technical changes.
EXISTING LAW:
- Establishes a state and local system of child welfare services, including foster care, for children who have been adjudged by the court to be at risk of being abused or neglected or to have been abused or neglected, as specified. (Welfare and institutions Code (WIC) 202)
- States that the purpose of foster care law is to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, neglected, or exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of harm. (WIC 300.2)
- States the intent of the Legislature to preserve and strengthen a child's family ties whenever possible and to reunify a foster youth with his or her biological family whenever possible, or to provide a permanent placement alternative, such as adoption or guardianship. (WIC 16000)
- Requires a social worker, within 30 days of taking a child into temporary custody or whenever appropriate to identify and locate all adults who are related to the child by blood, adoption, or affinity within the fifth degree of kinship and provide for the purposes of informing them of their right to participate in the care and placement of the child, as specified. (WIC 309(e))
- Requires preferential consideration be given to a request by a relative to have the child placed with the relative if the child has been removed from the physical custody of the child's parent(s). (WIC 361.3(a))
- Allows a court to make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of a dependent child, including medical treatment, subject to further order of the court. (WIC 362(a))
- Authorizes the court, in order to provide stable, permanent homes for all children who are dependents of the juvenile court, to make findings and orders related to the termination of parental rights, tribal customary adoption, legal guardianship, or adoption of the youth, as specified. (WIC 366.26 et seq.)
- Requires that an agency supervising a foster child prepare an assessment prior to a hearing to terminate parental rights when a parent has voluntarily relinquished the child, when a child is removed from a parent due to delinquency and cannot return home, or when a guardianship order is established, that includes: efforts made to locate absent or noncustodial parents; a review of any contact between the child and his or her parents and other family members, as specified; evaluation of the child's medical, developmental, scholastic, mental, and emotional status; a preliminary assessment of any identified prospective adoptive parent or guardian, to include a social history including criminal records and prior referrals for child abuse or neglect, ability to meet the child's needs, and the understanding of the legal and financial rights and responsibilities of adoption and guardianship, as specified; and the relationship of the child to any identified prospective adoptive parent or guardian, nature of the relationship, attachment level of the child to the prospective relative guardian or adoptive parent, the relative's or adoptive parent's 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 other facts. (WIC 361.5(g)(1))
- Requires termination of Kin-GAP eligibility upon termination of the guardianship with a kinship guardian, except in certain circumstances, as specified. Further specifies that if a successor guardian is appointed and is also a kinship guardian, the successor guardian shall be entitled to receive Kin-GAP on behalf of the child, as specified. (WIC 11386(i))
FISCAL EFFECT: According to the Assembly Appropriations Committee, on June 28, 2017, this bill may result in minor and absorbable costs to the courts.
COMMENTS:
Child Welfare Services: The purpose of California's Child Welfare Services (CWS) system is to protect children from abuse and neglect and provide for their health and safety. When children are identified as being at risk of abuse, neglect or abandonment, county juvenile courts hold legal jurisdiction and children are served by the CWS system through the appointment of a social worker. Through this system, there are multiple opportunities for the custody of the child, or his or her placement outside of the home, to be evaluated, reviewed and determined by the judicial system, in consultation with the child's social worker, to help provide the best possible services to the child. The CWS system seeks to help children who have been removed from their homes reunify with their parents or guardians, whenever appropriate, or unite them with other individuals they consider to be family. There are currently close to 61,000 children and youth in California's child welfare system.
Dependency court procedure: Historically, it has been the policy of California that when a child is removed from his or her parent's or parents' custody, preserving familial ties is of the utmost importance. As such, social workers and county welfare agencies are often tasked with finding appropriate placements with relative caregivers, including another parent, grandparents, siblings or nonrelative extended family members.
When a child is removed from his or her parent's or parents' custody, he or she is temporarily placed within the jurisdiction of the child welfare system until a determination about the child's welfare is made. Within 48 hours of being taken into temporary custody, a child's social worker must file a petition with the court requesting a detention hearing to determine if further detention of the child is in order. If further detention is required, the court must hold a jurisdictional hearing where, if the allegations of child abuse and neglect are substantiated, the child is removed from the custody of his or her parents and deemed a dependent of the juvenile court. Finally, a disposition hearing determines the parameters of the family reunification plan, including where and with whom the child will live, be it with relatives or in another setting.
Legal guardianship: According to DSS, guardianship is most frequently used by relative caregivers who wish to provide a permanent home for a child and maintain relationships with extended family members. Guardianship is often utilized when reunification efforts between the child and his or her family have been unsuccessful and permanency through adoption is not a desirable option. Unlike adoption requirements, caregivers can assume legal guardianship of a child in out-of-home care without terminating parental rights.
Regardless of whether a guardianship is established in lieu of juvenile court dependency or as part of a dependency permanent plan, current law requires that a social worker provide a written assessment of the prospective guardian that discusses the appropriateness of a guardianship. The court must also review the assessment and determine that the proposed guardianship is in the best interest of the child. The assessment is required to include details regarding: due diligence in locating and notifying absent parents, the duration and character of the relationship and the degree of attachment of the child to the prospective guardian, and the prospective guardian's strong commitment to caring permanently for the child and their motivation for seeking guardianship, among others.
Kinship Guardian Assistance Payment (Kin-GAP): Kin-GAP is a cash aid program designed to support foster children who have been placed in long-term foster care with a relative caregiver. While children in foster care are eligible for monthly foster care payments and support services, some relative caregivers prefer a greater sense of permanency and autonomy over living arrangements. Kin-GAP was first established by SB 1901 (McPherson), Chapter 1055, Statutes of 1998, and provided a compromise by permitting youth to remain eligible for monthly maintenance payments equal to the county foster care family home rate, while simultaneously providing the freedom of a permanent placement. Later, AB 1808 (Assembly Committee on Budget), Chapter 75, Statutes of 2006 extended the Kin-GAP program to children whose juvenile court ward-ship is terminated in favor of guardianship with a relative caregiver. Kin-GAP provides payments as income directly to the child, not the caregiver, and consists of both cash aid and Medi-Cal benefits.
Successor guardian appointment: On September 29, 2014 the Preventing Sex Trafficking and Strengthening Families Act (Public Law 113-183) was signed into law. The Act sought to strengthen permanency options for children in the child welfare system and encourages the designation of a successor guardian in the original guardianship assistance agreement that is required for guardianship. With a successor guardian already named in the agreement, that person may immediately begin caring for the child and receive guardianship assistance payments thereby preventing the child from returning to foster care in order to remain eligible for guardianship assistance payments.
In response to this, SB 794 (Senate Committee on Human Services), Chapter 425, Statutes of 2015, amended state statute and specified that Kin-GAP payments shall continue to be made to a successor guardian if the appointment of the successor guardian is due to the death or incapacity of the original kinship guardian.
Need for this bill: According to the author's office, "This bill would address a subset of the dependents in the care and custody of the state child welfare departments- children in legal guardianship placements. This bill would allow the assessment of legal guardians to include the development of a plan for a successor guardian in the case of the incapacity or death of the guardian."
PRIOR LEGISLATION:
AB 404 (Stone) of the current legislative session,will further Continuum of Care Reform efforts made by AB 403 and AB 1997. This bill is currently on suspense in the Senate Appropriations Committee.
AB 1997 (Stone), Chapter 612, Statutes of 2016, furthered Continuum of Care Reform efforts.
AB 403 (Stone), Chapter 773, Statutes of 2015, implemented Continuum of Care Reform recommendations to better serve children and youth in California's child welfare services system.
SB 79 (Committee on Human Services), Chapter 425, Statutes of 2015, allowed a successor kinship guardian to receive Kin-GAP, if the prior kinship guardian dies or is incapacitated.
H.R. 4980 (Camp), 2014, Public Law 113-183, also known as the Preventing Sex Trafficking and Strengthening Families Act of 2014, encouraged the designation of a successor guardian in the original guardianship assistance agreement.
SB 1901 (McPherson), Chapter 1055, Statutes of 1998, established the Kinship Guardianship Assistance Program in California.
Analysis Prepared by: Kelsy Castillo / HUM. S. / (916) 319-2089 FN: 0001392
Date of Hearing: June 28, 2017
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Lorena Gonzalez Fletcher, Chair
SBPCA Bill Id:SB 438
Author:(Roth) – As Amended Ver:April 20, 2017
Policy Committee: | Human Services | Vote: | 6 - 0 |
Judiciary | 11 - 0 | ||
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Urgency: No State Mandated Local Program: No Reimbursable: No
SUMMARY:
This bill allows a juvenile court to plan for a successor guardian when appointing a guardian for a child. Specifically, this bill:
- Whenever a juvenile court orders a hearing to terminate parental rights, allows the agency supervising a child to include the development of a plan for a successor guardian in the preliminary assessment of a legal guardian.
- Allows the juvenile court to consider any plan for a successor guardian submitted to the court at the time the court is appointing a legal guardian for a child, in case of the incapacity or death of the guardian.
- In the event of the incapacity or death of an appointed guardian, allows the juvenile court to appoint an individual identified in the assessment submitted to the court as a successor guardian pursuant to the procedures for the appointment of a legal guardian.
FISCAL EFFECT:
Costs to the courts are minor and absorbable.
COMMENTS:
- Purpose. According to the author:
This bill would align California law with federal policy – to name a successor guardian for individuals seeking legal guardianship – and expand the policy to include non-relative legal guardians. The naming of a successor guardian by non-relative legal guardians was not specified in federal law.
SB 438 would allow both relatives and non-relative legal guardians to name a successor guardian. Recognizing that allowing a relative legal guardian to name a successor guardian is a step forward, more should be done to ensure the continuity of care for all children and youth with guardianships. A child or youth placed into any permanent home should have the peace of mind knowing that his or her care has been planned out prior to the termination of his or her dependency case. However, this provision should apply for all legal guardianships – relative and non-relative. . . .
- Background. When a foster child cannot successfully reunify with his or her parents, a permanent home can be achieved through adoption or guardianship. A guardian can be appointed by the juvenile court after being fully assessed by the child welfare agency and the court to ensure that the guardian can provide a safe home for the child. Unlike an adoption, a guardianship does not require the termination of parental rights. This often makes it an appealing choice for relative caregivers or nonrelative extended family members, who may want to provide a permanent home for the child but do not feel comfortable seeking termination of a family member’s parental rights.
Since parental rights are not terminated, a legal guardian does not have all the rights and responsibilities of a parent. Rather, guardianship effectively suspends the rights and responsibilities of the legal parents. The guardian has parent-like responsibility for the child in terms of caring for the child, making decisions regarding where the child resides, the child’s education and day-to-day life. However, the court still retains some decision-making authority. The guardian may be removed by the court or the guardianship can be terminated by a court order. Typically, a guardianship terminates when the child turns 18, but can be extended to 21 in limited instances. Unlike in an adoption, where the adoptive parent can name a guardian for a child should that parent die or otherwise become unable to care for the child, only a court can unilaterally name a successor guardian.
In 1998, California established the Kinship Guardianship Assistance Payment program (the Kin-GAP program) to provide financial assistance for children who, after being adjudged dependent children of the juvenile court, are placed in legal guardianship with a relative.
SB 79 (Budget), Chapter 20, Statutes of 2015, furthered efforts to provide greater permanency to California’s foster children by, following changes made by the federal Preventing Sex Trafficking and Strengthening Families Act, allowing a relative guardian to name a successor guardian in case the guardian dies or becomes unable to care for the child. With a successor guardian already named in the agreement, that person may immediately begin caring for the child and receive Kin-GAP program assistance thereby preventing the child from returning to foster care in order to remain eligible for guardianship assistance payments.
In response to this, SB 794 (Human Services Committee), Chapter 425, Statutes of 2015, provided that Kin-GAP program payments continue to be made to a successor guardian if the appointment of the successor guardian is due to the death or incapacity of the original kinship guardian.
Analysis Prepared by: Jennifer Swenson / APPR. / (916) 319-2081
Date of Hearing: June 20, 2017
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
SBPCA Bill Id:SB 438
Author:(Roth) – As Amended Ver:April 20, 2017
PROPOSED CONSENT
SENATE VOTE: 39-0
SUBJECT: Legal guardianship: successor guardian
KEY ISSUE: IN ORDER TO PROVIDE MORE STABILITY TO foster CHILDREN SUBJECT TO A GUARDIANSHIP, SHOULD the child welfare agency be able to recommend and should the COURT, WHEN APPOINTING A GUARDIAN, BE PERMITTED TO PLAN FOR A SUCCESSOR GUARDIAN IN the event of THE DEATH OR INCAPACITY OF THE GUARDIAN?
SYNOPSIS
In 1998, California established the Kinship Guardianship Assistance Payment program (the Kin-GAP program) to provide financial assistance to foster children who are placed in legal guardianship with a relative. (SB 1901 McPherson, Chap. 1055, Stats. 1998.) Efforts to provide greater permanency to California’s foster children were furthered by SB 79 (Budget), Chap. 20, Stats. 2015, which, following changes made by the federal Preventing Sex Trafficking and Strengthening Families Act, allowed a relative guardian to name a successor guardian in case the guardian dies or becomes unable to care for the child and maintain the child's access to Kin-GAP support.
This bill builds on California’s commitment to provide more stability and permanency to foster children by allowing a preliminary assessment of a legal guardian, whether a relative or not, to include the development of a plan for a successor guardian in the case of incapacity or death of the guardian and allowing the court, in considering the appointment of a legal guardian, to consider the plan for a successor guardian. This should help ensure that a child placed in a permanent home with a guardian can know that his or her care has been planned out, even if something happens to the appointed guardian. This bill is sponsored by the Riverside County Board of Supervisors and is supported by counties, welfare directors, labor, and social workers. It has no reported opposition, and passed the Assembly Human Services Committee last week on consent.
SUMMARY: Allows a juvenile court to plan for a successor guardian when appointing a guardian for a child. Specifically, this bill:
- Whenever a juvenile court orders a hearing to terminate parental rights, allows the agency supervising a child to include the development of a plan for a successor guardian in the preliminary assessment of a legal guardian.
- Allows the juvenile court to consider any plan for a successor guardian submitted to the court at the time the court is appointing a legal guardian for a child, in case of the incapacity or death of the guardian.
- In the event of the incapacity or death of an appointed guardian, allows the juvenile court to appoint an individual identified in the assessment submitted to the court as a successor guardian pursuant to the procedures for the appointment of a legal guardian.
EXISTING LAW:
- Provides that a juvenile court has jurisdiction over a child who is subject to abuse or neglect. (Welfare and Institutions Code Section 300. Unless stated otherwise, all further statutory references are to that code.)
- Allows the juvenile court, if it finds that a child meets the requirements to be adjudicated a dependent of the court and the parent is not interested in family maintenance or family reunification services, in addition to or in lieu of adjudicating the child a dependent of the court, to order a legal guardianship, appoint a legal guardian, and issue letters of guardianship for the child if the court determines that a guardianship is in the best interest of the child, as provided. (Section 360.)
- Requires that the agency supervising a dependent child prepare an assessment for the court prior to a hearing to consider terminating parental rights when a parent has voluntarily relinquished the child or when a child is removed from a parent and cannot return home, or when a guardianship order is established. The assessment includes, among other things:
- A preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent or guardian 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, as specified; and
- The relationship of the child to any identified prospective adoptive parent or guardian, the duration and character of the relationship, the degree of attachment of the child to the prospective relative guardian or adoptive parent, the relative’s or adoptive parent’s 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 other facts. (Section 361.5 (g).)
- Requires a juvenile court which orders a hearing to consider termination of parental rights to direct the agency supervising the child and the county or state adoption agency to prepare an assessment of the eligibility and commitment of any identified prospective adoptive parents or legal guardians, as specified. (Sections 366.21, 366.22, 366.25.)
- Allows the court in specified circumstances to hold a hearing to determine if parental rights should be permanently terminated. Provides that the following are the possible living arrangements for the child, in order of preference:
- Termination of parental rights and adoption;
- Without terminating parental rights, tribal customary adoption;
- Appointment of the relative with whom the child is residing as the child's legal guardian;
- Identification of adoption or tribal customary adoption as the permanency goal and requirement to make efforts to accomplish that goal;
- Appointment of a non-relative as the child's legal guardian;
- Order that the child be permanently placed with a fit and willing relative; or
- Require that the child remain in foster care, as provided. (Section 366.26.)
- Provides that termination of the guardianship with a kinship guardian terminates eligibility for Kin-GAP payments, as specified, except where a successor kinship guardian is appointed due to the death or incapacity of the kinship guardian and the successor guardian is named in the kinship guardianship assistance agreement or amendment to the agreement. Provides that, if the successor guardian has been assessed, this waives the mandated six months of placement prior to Kin-GAP payments being provided. (Section 11386 (i).)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: In 1998, California established the Kinship Guardianship Assistance Payment program (the Kin-GAP program) to provide financial assistance for children who, after being adjudged dependent children of the juvenile court, are placed in legal guardianship with a relative. (SB 1901 McPherson, Chap. 1055, Stats. 1998.) That bill was the result of a study that concluded that most relative caregivers have strong commitments to the children in their care, but are averse to adoption because it requires the termination of the parental rights of one of their family members. Moreover, while most relative caregivers supported permanency planning for a child, many did not pursue legal guardianship for fear of losing the needed financial support they obtained under the foster care system. SB 79 (Budget), Chap. 20, Stats. 2015, furthered efforts to provide greater permanency to California’s foster children by, following changes made by the federal Preventing Sex Trafficking and Strengthening Families Act, allowing a relative guardian to name a successor guardian in case the guardian dies or becomes unable to care for the child.
This bill builds upon California’s commitment to provide more stability and permanency to foster children by allowing a preliminary assessment of a legal guardian, whether a relative or not, to include the development of a plan for a successor guardian in the case of incapacity or death of the guardian and allowing the court, in considering appointment of a legal guardian, to consider any plan for a successor guardian.
According to the author:
This bill would align California law with federal policy – to name a successor guardian for individuals seeking legal guardianship – and expand the policy to include non-relative legal guardians. The naming of a successor guardian by non-relative legal guardians was not specified in federal law.
SB 438 would allow both relatives and non-relative legal guardians to name a successor guardian. Recognizing that allowing a relative legal guardian to name a successor guardian is a step forward, more should be done to ensure the continuity of care for all children and youth with guardianships. A child or youth placed into any permanent home should have the peace of mind knowing that his or her care has been planned out prior to the termination of his or her dependency case. However, this provision should apply for all legal guardianships – relative and non-relative. . . .
The safety of the youth or child is always a primary concern. A process is in place to ensure successor guardians are vetted through extensive, expedited backgrounds checks. This process allows the child to stay with the family he knows.
The Juvenile Court Guardianship Process. When a foster child cannot successfully reunify with his or her parents, a permanent home can be achieved through adoption or guardianship. A guardian can be appointed by the juvenile court after being fully assessed by the child welfare agency and the court to ensure that the guardian can provide a safe home for the child. Unlike an adoption, a guardianship does not require the termination of parental rights. This often makes it an appealing choice for relative caregivers or nonrelative extended family members, who may want to provide a permanent home for the child but do not feel comfortable seeking termination of a family member’s parental rights.
Since parental rights are not terminated, a legal guardian does not have all the rights and responsibilities of a parent. Rather, guardianship effectively suspends the rights and responsibilities of the legal parents. The guardian has parent-like responsibility for the child in terms of caring for the child, making decisions regarding where the child resides, the child’s education and day-to-day life. However, the court still retains some decision-making authority. The guardian may be removed by the court or the guardianship can be terminated by a court order. Typically, a guardianship terminates when the child turns 18, but can be extended to 21 in limited instances. Unlike in an adoption, where the adoptive parent can name a guardian for a child should that parent die or otherwise become unable to care for the child, a guardian cannot unilaterally name a successor guardian. Only the court can do that.
Successor Guardian Appointment: The 2014 federal Preventing Sex Trafficking and Strengthening Families Act sought to strengthen permanency options for children in the child welfare system. Of particular relevance for this bill, that Act encouraged the designation of a successor guardian in the original guardianship assistance agreement that is required for a guardianship. With a successor guardian already named in the agreement, that person may immediately begin caring for the child and receive Kin-GAP payments thereby preventing the child from returning to foster care in order to remain eligible for guardianship assistance payments.
In response to this, SB 794 (Human Services Committee), Chap. 425, Stats. 2015, provided that Kin-GAP payments continue to be made to a successor guardian if the appointment of the successor guardian is due to the death or incapacity of the original kinship guardian. (Section 11386 (i).)
This Bill Provides for the Identification of a Successor Guardian in the Court Plan. The stability that a guardian provides a child, particularly a foster child, can be abruptly terminated if that guardian dies or becomes incapable of caring for the child. This bill allows the guardian, the child welfare agency, and the court to plan for the guardian's potential incapacity or death with the recognition of a successor guardian in the guardianship plan. Under this bill, the child welfare agency can include a plan for a successor guardian in the agency's preliminary assessment of a legal guardian and the juvenile court may consider any plan for a successor guardian submitted at the time the court is appointing a legal guardian for the child. In the event of the incapacity or death of an appointed guardian, the bill provides that the juvenile court may appoint the individual identified in the assessment as a successor guardian, pursuant to the procedures for the appointment of a legal guardian.
This early planning for the continued permanency for foster children, should the worst occur to the guardian, will help prevent a child's return to foster care and instead should allow the child to transfer seamlessly to the care of the new, already identified guardian.
ARGUMENTS IN SUPPORT: In support, the County Welfare Directors Association writes:
Guardians, both related and non-related, can provide loving and permanent homes for children who have been abused and neglected. Allowing all legal guardians to name a successor guardian will help ensure the continuity of care for children and youth with guardianships. A child or youth placed into any permanent home should have the peace of mind knowing that his or her care has been planned out, prior to termination of his or her dependency case.
REGISTERED SUPPORT / OPPOSITION:
Support
Riverside County Board of Supervisors (sponsor)
California State Association of Counties
County Welfare Directors Association
LIUNA Local 777 & 792
National Association of Social Workers, California Chapter
Rural County Representatives of California
Santa Clara County Board of Supervisors
San Diego County
Urban Counties of California
Opposition
None on file
Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334
Date of Hearing: June 13, 2017
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Blanca Rubio, Chair
SBPCA Bill Id:SB 438
Author:(Roth) – As Amended Ver:April 20, 2017
SENATE VOTE: 39-0
SUBJECT: Juveniles: legal guardianship: successor guardian
SUMMARY: Allows the court to consider any plan for a successor guardian submitted to the court, and allows the court to appoint an individual who was previously identified in an assessment in the event that the initial guardian becomes incapacitated or dies.
Specifically, this bill:
- Allows the juvenile court, when entering judgment subsequent to receipt and consideration of evidence, to consider any plan for a successor guardian submitted to the court.
- Authorizes the court, when entering judgment subsequent to receipt and consideration of evidence, in the event of the incapacity or death of an appointed guardian, to appoint an individual who was previously identified in the assessment submitted to the court pursuant to current law as a successor guardian, as specified.
- Allows the preliminary assessment of a prospective adoptive parent or guardian contained in the mandatory assessment prepared for a dispositional or review hearing by the agency supervising a child and the county adoption agency, or the Department of Social Services (DSS) when it is acting as an adoption agency, to also include the development of a plan for a successor guardian in the case of the incapacity or death of the guardian and further, permits the court to appoint an individual identified in the assessment submitted to the court, as specified.
- Makes technical changes.
EXISTING LAW:
- Establishes a state and local system of child welfare services, including foster care, for children who have been adjudged by the court to be at risk of being abused or neglected or to have been abused or neglected, as specified. (WIC 202)
- States that the purpose of foster care law is to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, neglected, or exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of harm. (WIC 300.2)
- States the intent of the Legislature to preserve and strengthen a child’s family ties whenever possible and to reunify a foster youth with his or her biological family whenever possible, or to provide a permanent placement alternative, such as adoption or guardianship. (WIC 16000)
- Requires a social worker, within 30 days of taking a child into temporary custody or whenever appropriate to identify and locate all adults who are related to the child by blood, adoption, or affinity within the fifth degree of kinship and provide for the purposes of informing them of their right to participate in the care and placement of the child, as specified. (WIC 309(e))
- Requires preferential consideration be given to a request by a relative to have the child placed with the relative if the child has been removed from the physical custody of the child's parent(s). (WIC 361.3(a))
- Allows a court to make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of a dependent child, including medical treatment, subject to further order of the court. (WIC 362(a))
- Authorizes the court, in order to provide stable, permanent homes for all children who are dependents of the juvenile court, to make findings and orders related to the termination of parental rights, tribal customary adoption, legal guardianship, or adoption of the youth, as specified. (WIC 366.26 et seq.)
- Requires that an agency supervising a foster child prepare an assessment prior to a hearing to terminate parental rights when a parent has voluntarily relinquished the child, when a child is removed from a parent due to delinquency and cannot return home, or when a guardianship order is established, that includes: efforts made to locate absent or noncustodial parents; a review of any contact between the child and his or her parents and other family members, as specified; evaluation of the child’s medical, developmental, scholastic, mental, and emotional status; a preliminary assessment of any identified prospective adoptive parent or guardian, to include a social history including criminal records and prior referrals for child abuse or neglect, ability to meet the child’s needs, and the understanding of the legal and financial rights and responsibilities of adoption and guardianship, as specified; and the relationship of the child to any identified prospective adoptive parent or guardian, nature of the relationship, attachment level of the child to the prospective relative guardian or adoptive parent, the relative’s or adoptive parent’s 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 other facts. (WIC 361.5(g)(1))
- Requires termination of Kin-GAP eligibility upon termination of the guardianship with a kinship guardian, except in certain circumstances, as specified. Further specifies that if a successor guardian is appointed and is also a kinship guardian, the successor guardian shall be entitled to receive Kin-GAP on behalf of the child, as specified. (WIC 11386(i))
FISCAL EFFECT: Unknown.
COMMENTS:
Child Welfare Services: The purpose of California’s Child Welfare Services (CWS) system is to protect children from abuse and neglect and provide for their health and safety. When children are identified as being at risk of abuse, neglect or abandonment, county juvenile courts hold legal jurisdiction and children are served by the CWS system through the appointment of a social worker. Through this system, there are multiple opportunities for the custody of the child, or his or her placement outside of the home, to be evaluated, reviewed and determined by the judicial system, in consultation with the child's social worker, to help provide the best possible services to the child. The CWS system seeks to help children who have been removed from their homes reunify with their parents or guardians, whenever appropriate, or unite them with other individuals they consider to be family. There are currently close to 61,000 children and youth in California’s child welfare system.
Dependency court procedure: Historically, it has been the policy of California that when a child is removed from his or her parent’s or parents’ custody, preserving familial ties is of the utmost importance. As such, social workers and county welfare agencies are often tasked with finding appropriate placements with relative caregivers, including another parent, grandparents, siblings or nonrelative extended family members.
When a child is removed from his or her parent’s or parents’ custody, he or she is temporarily placed within the jurisdiction of the child welfare system until a determination about the child’s welfare is made. Within 48 hours of being taken into temporary custody, a child’s social worker must file a petition with the court requesting a detention hearing to determine if further detention of the child is in order. If further detention is required, the court must hold a jurisdictional hearing where, if the allegations of child abuse and neglect are substantiated, the child is removed from the custody of his or her parents and deemed a dependent of the juvenile court. Finally, a disposition hearing determines the parameters of the family reunification plan, including where and with whom the child will live, be it with relatives or in another setting.
Legal guardianship: According to DSS, guardianship is most frequently used by relative caregivers who wish to provide a permanent home for a child and maintain relationships with extended family members. Guardianship is often utilized when reunification efforts between the child and his or her family have been unsuccessful and permanency through adoption is not a desirable option. Unlike adoption requirements, caregivers can assume legal guardianship of a child in out-of-home care without terminating parental rights.
Regardless of whether a guardianship is established in lieu of juvenile court dependency or as part of a dependency permanent plan, current law requires that a social worker provide a written assessment of the prospective guardian that discusses the appropriateness of a guardianship. The court must also review the assessment and determine that the proposed guardianship is in the best interest of the child. The assessment is required to include details regarding: due diligence in locating and notifying absent parents, the duration and character of the relationship and the degree of attachment of the child to the prospective guardian, and the prospective guardian’s strong commitment to caring permanently for the child and their motivation for seeking guardianship, among others.
Kinship Guardian Assistance Payment (Kin-GAP): Kin-GAP is a cash aid program designed to support foster children who have been placed in long-term foster care with a relative caregiver. While children in foster care are eligible for monthly foster care payments and support services, some relative caregivers prefer a greater sense of permanency and autonomy over living arrangements. Kin-GAP was first established by SB 1901 (McPherson), Chapter 1055, Statutes of 1998 and provided a compromise by permitting youth to remain eligible for monthly maintenance payments equal to the county foster care family home rate, while simultaneously providing the freedom of a permanent placement. Later, AB 1808 (Assembly Committee on Budget), Chapter 75, Statutes of 2006 extended the Kin-GAP program to children whose juvenile court ward-ship is terminated in favor of guardianship with a relative caregiver. Kin-GAP provides payments as income directly to the child, not the caregiver, and consists of both cash aid and Medi-Cal benefits.
Successor guardian appointment: On September 29, 2014 the Preventing Sex Trafficking and Strengthening Families Act (P.L. 113-183) was signed into law. The Act sought to strengthen permanency options for children in the child welfare system and encourages the designation of a successor guardian in the original guardianship assistance agreement that is required for guardianship. With a successor guardian already named in the agreement, that person may immediately begin caring for the child and receive guardianship assistance payments thereby preventing the child from returning to foster care in order to remain eligible for guardianship assistance payments.
In response to this, SB 794 (Senate Committee on Human Services), Chapter 425, Statutes of 2015, amended state statute and specified that Kin-GAP payments shall continue to be made to a successor guardian if the appointment of the successor guardian is due to the death or incapacity of the original kinship guardian.
Need for this bill: According to the author’s office, “This bill would address a subset of the dependents in the care and custody of the state child welfare departments- children in legal guardianship placements. This bill would allow the assessment of legal guardians to include the development of a plan for a successor guardian in the case of the incapacity or death of the guardian.”
PRIOR LEGISLATION:
AB 404 (Stone), 2017, will further Continuum of Care Reform efforts made by AB 403 and AB 1997. This bill is currently in the Senate Rules Committee awaiting referral.
AB 1997 (Stone), Chapter 612, Statutes of 2016, furthered Continuum of Care Reform efforts.
AB 403 (Stone), Chapter 773, Statutes of 2015, implemented Continuum of Care Reform recommendations to better serve children and youth in California’s child welfare services system.
SB 79 (Committee on Human Services), Chapter 425, Statutes of 2015, allowed a successor kinship guardian to receive Kin-GAP, if the prior kinship guardian dies or is incapacitated.
H.R. 4980 (Camp), 2014, PL 113-183, also known as the Preventing Sex Trafficking and Strengthening Families Act of 2014, encouraged the designation of a successor guardian in the original guardianship assistance agreement.
SB 1901 (McPherson), Chapter 1055, Statutes of 1998, established the Kinship Guardianship Assistance Program in California.
DOUBLE REFERRAL. This bill has been double-referred. Should this bill pass out of this committee, it will be referred to the Assembly Committee on Judiciary.
REGISTERED SUPPORT / OPPOSITION:
Support
Riverside County Board of Supervisors (Sponsor)
California State Association of Counties (CSAC)
County of San Diego
County Welfare Directors Association of CA (CWDA)
National Association of Social Workers, CA Chapter (NASW-CA)
Opposition
None on file.
Analysis Prepared by: Kelsy Castillo / HUM. S. / (916) 319-2089
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | SB |
CONSENT
Bill No: SB 438
:
SENATE HUMAN SERVICES COMMITTEE: 4-0, 4/4/17
AYES: Wiener, Glazer, Newman, Nguyen
NO VOTE RECORDED: Berryhill
SENATE JUDICIARY COMMITTEE: 7-0, 4/18/17
AYES: Jackson, Moorlach, Anderson, Hertzberg, Monning, Stern, Wieckowski
SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8
DIGEST:
This bill authorizes the preliminary assessment of a legal guardian to include the development of a plan for a successor guardian in the case of incapacity or death of the guardian. It further authorizes the court, in considering appointment of a legal guardian, to hear any plan for a successor guardian, and to appoint an individual identified in the assessment as a successor guardian in the event of the death or incapacity of the legal guardian, as specified.
Existing law:
- Places the care of a child who has been removed from his or her parents or guardian under the jurisdiction of the juvenile court and defines abuse and neglect criteria for such removal. (WIC 300 et seq.)
- Establishes a state and local system of child welfare services, including foster care, for children who have been adjudged by the court to be at risk or have been abused or neglected, as specified. (WIC 202 et seq.)
- Authorizes the court to order a legal guardianship, appoint a legal guardian, and issue letters of guardianship, if the court determines that a guardianship is in the best interest of the child. (WIC 360)
- Mandates a series of court hearings to review the child’s status and parents’ progress to reunify with the child, and, if reunification does not succeed, to terminate parental rights, and requires the court to consider various options for the child at these hearings, including whether to appoint a legal guardian. (WIC 360 et seq.)
- Requires that an agency supervising a foster child prepare an assessment prior to a hearing to terminate parental rights when a parent has voluntarily relinquished the child, when a child is removed from a parent due to delinquency and cannot return home, or when a guardianship order is established, that includes among other things:
- Current search efforts for an absent parent or parents and notification of a noncustodial parent.
- 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.
- An evaluation of the child’s medical, developmental, scholastic, mental, and emotional status.
- A preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent or guardian, including the prospective tribal customary adoptive parent, 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, as specified.
- 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 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 other facts. (WIC 361.5 (g)(1)
- Requires a court that orders a hearing to consider termination of parental rights after reunification services have been tried and in situations where additional reunification services are provided to direct the agency supervising the child and the county or state adoption agency to prepare an assessment of the eligibility and commitment of any identified prospective adoptive parents or legal guardians, as specified. (WIC 366.21 (i); WIC 366.22 (c)(1)(D); WIC 366.25 (b))
- Requires that termination of the guardianship with a kinship guardian shall terminate eligibility for Kin-GAP payments, as specified, except in a situation where a successor kinship guardian is appointed and due to the death or incapacity of the kinship guardian and the successor guardian is named in the kinship guardianship assistance agreement or amendment to the agreement. Waives the mandated six months of placement prior to Kin-GAP payments being provided if the successor guardian has been assessed, as specified. (WIC 11386 (i))
This bill:
- Permits the court to consider any plan for a successor guardian submitted to the court at the time the court is appointing a legal guardian for the child.
- Permits the court during the assessment of a legal guardian to also include the development of a plan for a successor guardian in the case of the incapacity or death of the guardian.
- Permits the court, in the event of the incapacity or death of an appointed guardian, to appoint an individual identified in the assessment submitted to the court under this paragraph as a successor guardian pursuant to the procedures for the appointment of a legal guardian, as specified.
Background
California’s child welfare system protects children at risk of child abuse and neglect or exploitation by providing intensive services to families in order to keep them together, or by determining that out-of-home placement is the only safe option for a child. When a child is removed from home, the child welfare agency arranges for and monitors temporary or permanent placement of the child in the safest and least restrictive environment possible.
Approximately 61,400 children were in out-of-home foster care placement through the child welfare system as of October 1, 2016, according to data produced by UC Berkeley’s Child Welfare Indicators Web site.[1] Numerous national studies have documented the poor outcomes of children who are in the child welfare system, including increased rates of chronic health problems, developmental delays and disabilities, mental health needs, and substance abuse problems.[2] Many youth have experienced traumatic events that lead to symptoms such as depression, behavior problems, hypersensitivity, and emotional difficulties, and 25 percent of youth who age-out of foster care experience Post-Traumatic Stress Disorder; double the rate of U.S. war veterans, according to the report.
Guardianship. Caregivers can assume legal guardianship of a child in out-of-home care without termination of parental rights, as is required for an adoption. According to a brief published by the US Administration on Children Youth and Families, guardianship is most frequently used when relative caregivers wish to provide a permanent home for the child and maintain relationships with extended family members,[3] especially when efforts to reunite the child with his or her family have been unsuccessful and permanency through adoption is either not possible or not appropriate.
Approximately 37 States, Guam, and the Virgin Islands specifically provide for guardianship with kin as a permanency goal for children in out-of-home care. Some 6,200 children – or roughly 10 percent of the child welfare caseload – were placed with guardians, according to the Child Welfare Indicators Web site, and another 21,000 are placed with relatives outside of a guardianship arrangement. Nationally, about 7 percent of children in the child welfare system exit to guardianship, a percentage that has grown steadily over the past 15 years, according to US child welfare data compiled by the Annie Casey Foundation.
Kinship Guardianship Assistance Payment (Kin-GAP). The Kinship Guardianship Assistance Payment program (SB 1901, Chapter 1055, Statutes of 1998) was established for children exiting the juvenile court dependency system to live with a relative legal guardian. Assembly Bill 1808 (Assembly Budget Committee, Chapter 75, Statutes of 2006) extended the provisions of the Kin-GAP program to probation youth exiting the delinquency system to live with a related guardian. According to data released this January with the Governor’s Budget, approximately 16,000 youth are in Kinship Guardianship care and receiving assistance payments which are equivalent to a basic foster care rate.
Movement to Kin-GAP is not automatic. The court, with a recommendation from the county social worker or probation officer, has discretion about whether termination of court involvement is in the child's best interest. Relative caregiver's participation in Kin-GAP is strictly voluntary, and not mandated by any regulations or statutes, and each guardian must be assessed prior to guardianship being awarded. In order to qualify for Kin-GAP, a child must be under the jurisdiction of the juvenile court, have had a kinship guardianship established by the court, and have been living for at least six months in the home of the guardian or prospective guardian, among other qualifications.
Successor Guardian. The Preventing Sex Trafficking and Strengthening Families Act (Public Law (P.L.) 113-183) of 2014 includes language that encourages naming a successor guardian in case a relative guardian dies or becomes unable to care for the child. The new federal law requires continuation of Kin-GAP if the relative guardian dies or is incapacitated and a successor guardian is named in the agreement, or any amendments to the agreement.
In response to the federal statute, California amended Kin-GAP statutory guidelines to require Kin-GAP payments continue to a successor guardian if the reason for the appointment of the successor guardian is the death or incapacity of the kinship guardian, and other circumstances apply (SB 794, Committee on Human Services, Chapter 425, Statutes of 2015).
Continuum of Care Reform. Following a three-year stakeholder process to reconsider how and when California places foster children in long-term congregate care, the state outlined a comprehensive reform of the system of placements and services. “California’s Child Welfare Continuum of Care Reform,” envisioned new models of care for foster youth, including more intensive services, providing needed treatment and services in homes rather than in group care, and a significant decrease in reliance on group homes. AB 403 (Stone, Chapter 773, Statutes of 2015) began enacting these reforms.
As a result, CDSS, the county welfare directors and advocates say there is a significantly increased need for relatives, guardians and foster families to care for these children. Recent Legislative efforts have focused on foster care recruitment and retention. Creating a successor guardian could increase the safety net for children and guardians and decrease the pressure to find homes for foster youth.
Related/Prior Legislation
AB 404 (Stone, 2017) is a cleanup bill that amends portions of the continuum of care reform effort.
AB 403 (Stone, Chapter 773, Statutes of 2015) began enacting the continuum of care reform effort.
SB 79 (Committee on Human Services, Chapter 425, Statutes of 2015) allowed a successor kinship guardian to receive Kin-GAP, if the prior kinship guardian dies or is incapacitated.
FISCAL EFFECT: Appropriation: Fiscal Com.: Local:
Riverside County (source)
County Welfare Directors Association
California State Association of Counties
Urban Counties of California
Rural County Representatives of California
OPPOSITION: (Verified 5/10/17)
None received
ARGUMENTS IN SUPPORT: The author states that this bill helps to ensure the continuity of care for all foster children and youth with guardianships by allowing the assessment of legal guardians to include a plan for a successor guardian in the case of the incapacity or death of the guardian. “More should be done to ensure the continuity of care for all children and youth with guardianships,” the author writes. “A child or youth placed into any permanent home should have the peace of mind knowing that his or her care has been planned out.”
5/10/17 15:26:38
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Senator Hannah-Beth Jackson, Chair
2017-2018 Regular Session
Bill No: SB 438 (Author:Roth)
Version: February 15, 2017
Hearing Date: April 18, 2017
Fiscal: Yes
Urgency: No
Consultant: MS
SUBJECT
Juveniles: legal guardianship: successor guardian
DESCRIPTION
This bill authorizes the preliminary assessment of a legal guardian to include the development of a plan for a successor guardian in the case of incapacity or death of the guardian. This bill authorizes the court, in considering appointment of a legal guardian, to hear any plan for a successor guardian.
BACKGROUND
In 1998, California established the Kinship Guardianship Assistance Payment program (the Kin-GAP program) to provide financial assistance for children who, after being adjudged dependent children of the juvenile court, are placed in legal guardianship with a relative. (SB 1901 McPherson, Ch. 1055, Stats. of 1998.) The bill was the result of a study that concluded that most relative caregivers have strong commitments to the children in their care, but are averse to adoption because it requires the termination of the parental rights of one of their family members. Moreover, while most relative caregivers supported permanency planning for a child, many did not pursue legal guardianship for fear of losing the needed financial support they obtained under the foster care system.
Efforts to keep California’s foster youth connected to their permanent connections was furthered by SB 79 (Committee on Budget, Ch. 20, Stats. 2015). This legislation allows a kinship guardian to name a successor guardian, as long as this successor is appointed pursuant to Welfare and Institutions Code Section 366.3. SB 79 also brought California law in line with changes made by the Preventing Sex Trafficking and Strengthening Families Act (Public Law 113-193). This Act encouraged states to enable relative guardians to name a successor in case the relative guardian dies or becomes unable to care for the child.
This bill further builds upon California’s legislative commitment to keeping youth in the most family-like setting available, with the greatest access to permanent connections. Allowing legal guardians to include the development of a plan for a successor guardian in their preliminary assessment and authorizing the court to hear any plan for a successor guardian while considering the appointment of a legal guardian means that youth who achieve permanency through guardianship will not lose access to permanent connections if death or incapacity renders their legal guardian unable to care for them. Instead of potentially returning to the foster care system, the youth would be able to continue living in a stable, supportive environment with the successor guardian identified by a legal guardian and approved by the court.
CHANGES TO EXISTING LAW
Existing law places the care of a child who has been removed from his or her parents or guardian under the jurisdiction of the juvenile court and defines abuse and neglect criteria for such removal. (Welf. & Inst. Code Sec. 300 et seq.)
Existing law establishes a state and local system of child welfare services, including foster care, for children who have been adjudged by the court to be at risk of or have been abused or neglected, as specified. (Welf. & Inst. Code Sec. 202 et seq.)
Existing law authorizes the court to order a legal guardianship, appoint a legal guardian, and issue letters of guardianship, if the court determines that a guardianship is in the best interest of the child. (Welf. & Inst. Code Sec. 360.)
Existing law mandates a series of court hearings to review the child’s status and parents’ progress to reunification with the child, and, if reunification does not succeed, to terminate parental rights. Existing law requires the court to consider a variety of reunification and permanency options for the child at these hearings, including whether to appoint a legal guardian. (Welf. & Inst. Code Sec. 360 et seq.)
Existing law requires that an agency supervising a foster child prepare an assessment prior to a hearing to terminate parental rights when a parent has voluntarily relinquished the child or when a child is removed from a parent due to delinquency and cannot return home, or when a guardianship order is established, the assessment includes among other things:
- current search efforts for an absent parent or parents and notification of a noncustodial parent;
- 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;
- an evaluation of the child’s medical, developmental, scholastic, mental, and emotional status;
- a preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent or guardian, including the prospective tribal customary adoptive parent, 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, as specified; and
- 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 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 other facts. (Welf. & Inst. Code Sec. 361.5(g).)
Existing law requires a court that orders a hearing to consider termination of parental rights after reunification services have been tried and in situations where additional reunification serves are provided to direct the agency supervising the child, and requires the county or state adoption agency to prepare an assessment of the eligibility and commitment of any identified prospective adoptive parents or legal guardians, as specified. (Welf. & Inst. Code Secs. 366.21(e)-(k), 366.22(c)(1)(D), 366.25(b).)
Existing law requires that termination of the guardianship with a kinship guardian shall terminate eligibility for Kin-GAP payments, as specified, except in a situation where a successor kinship guardian is appointed due to the death or incapacity of the kinship guardian and the successor guardian is named in the kinship guardianship assistance agreement or amendment to the agreement. This waives the mandated six months of placement prior to Kin-GAP payments being provided if the successor guardian has been assessed, as specified. (Welf. & Inst. Code Sec. 11386(i).)
This bill permits the court to consider any plan for a successor guardian submitted to the court at the time the court is appointing a legal guardian for the child.
This bill permits the court during the assessment of a legal guardian to also include the development of a plan for a successor guardian in the case of the incapacity or death of the guardian.
COMMENT
- Stated need for the bill
According to the author:
SB 438 would allow both relatives and non-relative legal guardians to name a successor guardian. Allowing a relative legal guardian to name a successor guardian was a step forward, but more should be done to ensure the continuity of care for all children and youth with guardianships. A child or youth placed into any permanent home should have the peace of mind knowing that his or her care has been planned out prior to the termination of his or her dependency case.
When a child or youth is placed into a permanent home, relative or non-relative, interactions naturally occur between the child and the legal guardian’s extended family and friends. These extended family members, such as the legal guardian’s brothers or sisters, become the child’s extended family. This extended family becomes a resource from which a successor guardian can be identified. Failure to clarify the ability of family courts to legally recognize successor guardians identified by relative and non-relative legal guardians unnecessarily puts the child or youth back into the foster care system.
In support, the County Welfare Directors Association (CWDA) writes:
This measure addresses successor guardianship for a sub-set of dependents in the care and custody of state child welfare departments – children in legal guardianship placements. Specifically, SB 438 would align California Law with federal policy that allows relatives seeking legal guardianship to name a successor guardian, and expand the policy to include non-relative legal guardians.
Guardians, both related and non-related, can provide loving and permanent homes for children who have been abused and neglected. Allowing all legal guardians to name a successor guardian will help ensure the continuity of care for children and youth with guardianships.
- The guardianship process
In California, a legally permanent home for a foster youth is achieved through adoption or guardianship when a youth cannot successfully reunify with their biological parents. Guardianship does not require the termination of parental rights, as is required for adoption. This often makes it an appealing choice for relative caregivers or nonrelative extended family members (NREFMs), who may want to provide a permanent home for the child but do not feel comfortable seeking termination of a family member’s parental rights.
Since parental rights are not terminated, a legal guardian does not have all the same legal rights and responsibilities as a parent, unlike an adoptive parent. Rather, guardianship is seen as suspending the rights and responsibilities of the birth parents. The guardian has parent-like responsibility for the child in terms of caring for the child, making decisions regarding where the child resides, the child’s education and day to day life. However, the court still retains some decision making authority. The guardian may be removed by the court or the guardianship could be terminated by a court order. Typically, a guardianship terminates when the child turns 18. When AB 12 extended foster care to age 21, making those aged 18 to 21 non-minor dependents, it additionally allowed youth in relative guardianship placements to continue receiving Kin-GAP benefits until age 21 as long as certain requirements are met.
A guardian is appointed by the court after being assessed by the appropriate child welfare agency that ensures the guardian will provide a safe and healthy home. The court may not close the child’s foster care case despite appointing a legal guardian; this means there will be continued social worker supervision and court review. This allows the child to continue receiving foster care services from the county, whereas if the case is closed the child no longer receives the social worker’s supervision or support. The court remains involved even if the foster care case is closed, however the involvement is less than the six month review hearings provided to foster care cases.
- Identifying a successor guardian
This bill would allow a guardian to plan for their potential incapacity or death with the appointment of a successor guardian. They would be allowed to identify a successor guardian while completing the preliminary assessment process with the appropriate social services or child welfare agency. The court would be able to consider this plan for a successor guardian when appointing a legal guardian.
Existing law already allows this identification of a successor guardian for kinship guardians. This successor is subject to the same requirements and limitations as any other guardianship. (Welf. & Inst. Code Sec. 11386(i).) This change was encouraged by the federal Preventing Sex Trafficking and Strengthening Families Act of 2014, which encouraged states to allow relatives to name a successor guardian.
Extending this right to all guardians helps them plan for continued permanency for their youth, should the worst occur. It prevents the youth’s return to the foster care by instead allowing them to remain with the extended family or non-relative family member of their guardian.
To clarify the Author’s intent that this bill supplements existing law on the guardianship process, the committee suggests the following amendment.
Suggested Amendments:
On page 3, in line 7, after “(3)” insert:
(A)
On page 3, between lines 11 and 12, insert:
(B) In the event of the incapacity or death of an appointed guardian, the court may appoint an individual identified in the assessment submitted to the court under this paragraph as a successor guardian pursuant to the procedures for the appointment of a legal guardian in Section 366.26.
On page 15, in line 18, after the period insert:
In the event of the incapacity or death of an appointed guardian, the court may appoint an individual identified in the assessment submitted to the court as a successor guardian pursuant to the procedures for the appointment of a legal guardian in Section 366.26.
On page 28, in line 17, after the period insert:
In the event of the incapacity or death of an appointed guardian, the court may appoint an individual identified in the assessment submitted to the court as a successor guardian pursuant to the procedures for the appointment of a legal guardian in Section 366.26.
On page 35, in line 10, after the period insert:
In the event of the incapacity or death of an appointed guardian, the court may appoint an individual identified in the assessment submitted to the court as a successor guardian pursuant to the procedures for the appointment of a legal guardian in Section 366.26.
On page 40, in line 14, after the period insert:
In the event of the incapacity or death of an appointed guardian, the court may appoint an individual identified in the assessment submitted to the court as a successor guardian pursuant to the procedures for the appointment of a legal guardian in Section 366.26.
Support: California State Association of Counties; County Welfare Directors Association; National Association of Social Workers, California Chapter; Riverside County Board of Supervisors; Santa Clara County Board of Supervisors
Opposition: None Known
HISTORY
Source: Riverside County
Related Pending Legislation: None Known
Prior Legislation:
AB 1997 (Stone, Ch. 612, Stats. of 2016) was a cleanup bill, which amended portions of the continuum of care reform effort.
AB 403 (Stone, Ch. 773, Stats. 2015) enacted the continuum of care reform.
SB 79 (Committee on the Budget, Ch. 20, Stats.2015) See background.
SB 1901 (McPherson, Ch. 1055, Stats. of 1998) established California’s Kinship Guardianship Assistance Program.
Prior Vote: Senate Committee on Human Services (Ayes 4, Noes 0)
**************
SENATE COMMITTEE ON HUMAN SERVICES
Senator Wiener, Chair
2017 - 2018 Regular
Bill No: SB 438
Author: | Roth | ||
Version: | February 15, 2017 | Hearing Date: | April 4, 2017 |
Urgency: | No | Fiscal: | Yes |
Consultant: | Mareva Brown | ||
Subject: Juveniles: legal guardianship: successor guardian
SUMMARY
This bill authorizes the preliminary assessment of a legal guardian to include the development of a plan for a successor guardian in the case of incapacity or death of the guardian. It further authorizes the court, in considering appointment of a legal guardian, to hear any plan for a successor guardian.
ABSTRACT
Existing law:
- Places the care of a child who has been removed from his or her parents or guardian under the jurisdiction of the juvenile court and defines abuse and neglect criteria for such removal. (WIC 300 et seq.)
- Establishes a state and local system of child welfare services, including foster care, for children who have been adjudged by the court to be at risk or have been abused or neglected, as specified. (WIC 202 et seq.)
- Authorizes the court to order a legal guardianship, appoint a legal guardian, and issue letters of guardianship, if the court determines that a guardianship is in the best interest of the child. (WIC 360)
- Mandates a series of court hearings to review the child’s status and parents’ progress to reunify with the child, and, if reunification does not succeed, to terminate parental rights, and requires the court to consider various options for the child at these hearings, including whether to appoint a legal guardian. (WIC 360 et seq.)
- Requires that an agency supervising a foster child prepare an assessment prior to a hearing to terminate parental rights when a parent has voluntarily relinquished the child, when a child is removed from a parent due to delinquency and cannot return home, or when a guardianship order is established, that includes among other things:
- Current search efforts for an absent parent or parents and notification of a noncustodial parent.
- 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.
- An evaluation of the child’s medical, developmental, scholastic, mental, and emotional status.
- A preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent or guardian, including the prospective tribal customary adoptive parent, 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, as specified.
- 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 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 other facts. (WIC 361.5 (g)(1)
- Requires a court that orders a hearing to consider termination of parental rights after reunification services have been tried and in situations where additional reunification services are provided to direct the agency supervising the child and the county or state adoption agency to prepare an assessment of the eligibility and commitment of any identified prospective adoptive parents or legal guardians, as specified. (WIC 366.21 (i); WIC 366.22 (c)(1)(D); WIC 366.25 (b))
- Requires that termination of the guardianship with a kinship guardian shall terminate eligibility for Kin-GAP payments, as specified, except in a situation where a successor kinship guardian is appointed and due to the death or incapacity of the kinship guardian and the successor guardian is named in the kinship guardianship assistance agreement or amendment to the agreement. Waives the mandated six months of placement prior to Kin-GAP payments being provided if the successor guardian has been assessed, as specified. (WIC 11386 (i))
This bill:
- Permits the court to consider any plan for a successor guardian submitted to the court at the time the court is appointing a legal guardian for the child.
- Permits the court during the assessment of a legal guardian to also include the development of a plan for a successor guardian in the case of the incapacity or death of the guardian.
FISCAL IMPACT
This bill has not been analyzed by a fiscal committee.
BACKGROUND AND DISCUSSION
Purpose of the bill:
The author states that this bill helps to ensure the continuity of care for all foster children and youth with guardianships by allowing the assessment of legal guardians to include a plan for a successor guardian in the case of the incapacity or death of the guardian. It furthers California law and recent federal policy, which encourage the naming of a successor guardian for relatives seeking legal guardianship, by authorizing the court to consider a successor guardian early in the court process. It also would expand those policies to include non-related legal guardians. “More should be done to ensure the continuity of care for all children and youth with guardianships,” the author writes. “A child or youth placed into any permanent home should have the peace of mind knowing that his or her care has been planned out.”
Background:
California’s child welfare system protects children at risk of child abuse and neglect or exploitation by providing intensive services to families in order to keep them together, or by determining that out-of-home placement is the only safe option for a child. When a child is removed from home, the child welfare agency arranges for and monitors temporary or permanent placement of the child in the safest and least restrictive environment possible.
Approximately 61,400 children were in out-of-home foster care placement through the child welfare system as of October 1, 2016, according to data produced by UC Berkeley’s Child Welfare Indicators website.[1] Numerous national studies have documented the poor outcomes of children who are in the child welfare system, including increased rates of chronic health problems, developmental delays and disabilities, mental health needs, and substance abuse problems.[2] Many youth have experienced traumatic events that lead to symptoms such as depression, behavior problems, hypersensitivity, and emotional difficulties, and 25 percent of youth who age-out of foster care experience Post-Traumatic Stress Disorder, double the rate of U.S. war veterans, according to the report.
Guardianship
Caregivers can assume legal guardianship of a child in out-of-home care without termination of parental rights, as is required for an adoption. According to a brief published by the US Administration on Children Youth and Families, guardianship is most frequently used when relative caregivers wish to provide a permanent home for the child and maintain relationships with extended family members,[3] especially when efforts to reunite the child with his or her family have been unsuccessful and permanency through adoption is either not possible or not appropriate.
Approximately 37 States, Guam, and the Virgin Islands specifically provide for guardianship with kin as a permanency goal for children in out-of-home care. Some 6,200 children – or roughly 10 percent of the child welfare caseload – were placed with guardians, according to the Child Welfare Indicators website, and another 21,000 are placed with relatives outside of a guardianship arrangement. Nationally, about 7 percent of children in the child welfare system exit to guardianship, a percentage that has grown steadily over the past 15 years, according to US child welfare data compiled by the Annie Casey Foundation.[4]
Kinship Guardianship Assistance Payment (Kin-GAP)
The Kinship Guardianship Assistance Payment program (SB 1901, Chapter 1055, Statutes of 1998) was established for children exiting the juvenile court dependency system to live with a relative legal guardian. Assembly Bill 1808 (Chapter 75, Statutes of 2006) extended the provisions of the Kin-GAP program to probation youth exiting the delinquency system to live with a related guardian.[5] According to data released this January with the Governor’s Budget, approximately 16,000 youth are in Kinship Guardianship care and receiving assistance payments which are equivalent to a basic foster care rate.
Movement to Kin-GAP is not automatic. The court, with a recommendation from the county social worker or probation officer, has discretion about whether termination of court involvement is in the child's best interest. Relative caregiver's participation in Kin-GAP is strictly voluntary, and not mandated by any regulations or statutes, and each guardian must be assessed prior to guardianship being awarded. In order to qualify for Kin-GAP, a child must be under the jurisdiction of the juvenile court, have had a kinship guardianship established by the court, and have been living for at least six months in the home of the guardian or prospective guardian, among other qualifications.
Successor Guardian
The Preventing Sex Trafficking and Strengthening Families Act (Public Law (P.L.) 113-183) was signed into law on September 29, 2014. One provision of the act encourages naming a successor guardian in case a relative guardian dies or becomes unable to care for the child. The new federal law requires continuation of Kin-GAP if the relative guardian dies or is incapacitated and a successor guardian is named in the agreement, or any amendments to the agreement.[6]
In response to the federal statute, California amended Kin-GAP statutory guidelines to require Kin-GAP payments continue to a successor guardian if the reason for the appointment of the successor guardian is the death or incapacity of the kinship guardian, and other circumstances apply (SB 794, Committee on Human Services, Chapter 425, Statutes of 2015).
Continuum of Care Reform
Following a three-year stakeholder process to reconsider how and when California places foster children in long-term congregate care, the state outlined a comprehensive reform of the system of placements and services. “California’s Child Welfare Continuum of Care Reform,” envisioned new models of care for foster youth, including more intensive services, providing needed treatment and services in homes rather than in group care, and a significant decrease in reliance on group homes. AB 403 (Stone, Chapter 773, Statutes of 2015) began enacting these reforms.
As a result, CDSS, the county welfare directors and advocates say there is a significantly increased need for relatives, guardians and foster families to care for these children. Recent Legislative efforts have focused on providing funding to counties for foster care recruitment and retention. Creating a successor guardian could increase the stability and safety net for children and guardians and decrease the pressure to find homes for foster youth.
Related legislation:
AB 1997 (Stone, Chapter 612, Statutes of 2016) was a cleanup bill that amended portions of the continuum of care reform effort.
AB 403 (Stone, Chapter 773, Statutes of 2015) began enacting the continuum of care reform effort.
SB 79 (Committee on Human Services, Chapter 425, Statutes of 2015) allows a successor kinship guardian to receive Kin-GAP, if the prior kinship guardian dies or is incapacitated.
SB 1901 (Chapter 1055, Statutes of 1998) established the Kinship Guardianship Assistance Program in California.
COMMENTS
This bill expands on existing federal and state statutory options to permit the naming of a successor legal guardian when a legal guardian dies or becomes incapacitated, and an immediate eligibility for Kin-GAP funds to the guardian, without the mandated six month wait time in current statute. The bill additionally extends the option to name a successor guardian beyond kinship guardians, to allow the courts to identify a successor guardian who is not a family member.
POSITIONS
Support:
County Welfare Directors Association
The California State Association of Counties/Urban Counties of California/Rural County Representatives of California
Oppose:
None.
-- END --
http://cssr.berkeley.edu/ucb_childwelfare ↑
http://www.childrensaidsociety.org/files/upload-docs/report_final_April_2.pdf ↑
https://www.childwelfare.gov/topics/permanency/guardianship/ ↑
http://datacenter.kidscount.org ↑
http://www.childsworld.ca.gov/pg1354.htm ↑
http://www.childrensdefense.org/library/data/implementing-the-preventing.pdf ↑
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