SB 578: Juvenile court: dependents: removal.
- Session Year: 2023-2024
- House: Senate
- Latest Version Date: 2023-10-08
Current Status:
Passed
(2023-10-08: Chaptered by Secretary of State. Chapter 618, Statutes of 2023.)
Introduced
In Committee
First Chamber
In Committee
Second Chamber
Enacted
What does this bill do?
This bill requires social workers and juvenile courts handling child welfare cases to study and report the short- and long-term harms of removing a child from home and to consider and document less disruptive options before removal; it affects children, parents, social workers, and juvenile courts. The report must include the child’s perspective, family and school impacts, placement choices and efforts to find relatives, and for Indian children (Native American children) their tribal and family connections; if removal is necessary the court must state the placement, reasons, and any orders to reduce harm.
The summary is provided by generative AI which can make mistakes. For original language, please view the details in the table below.
Existing law establishes the jurisdiction of the juvenile court, which may adjudge children to be dependents of the court under certain circumstances, including when the child suffered or there is a substantial risk that the child will suffer serious physical harm, or a parent fails to provide the child with adequate food, clothing, shelter, or medical treatment. Existing law establishes the grounds for removal of a dependent child from the custody of the childs parents or guardian. Existing law requires the court, at the initial petition hearing, to examine the childs parents, guardians, Indian custodian, or other persons having relevant knowledge and hear the relevant evidence, and order the release of the child from custody unless a prima facie showing has been made that the child comes within the courts jurisdiction, the court finds that continuance in the parents or guardians home is contrary to the childs welfare, and any of a number of circumstances exist. Existing law requires the social worker to report to the court on the reasons why the child has been removed from the parents, guardians, or Indian custodians physical custody, the need, if any, for continued detention, and the available services and the referral methods to those services that could facilitate the return of the child to the custody of the childs parents, among other things.
This bill would require the social workers report to also include information regarding the short-term and long-term harms to the child that may result from their removal, including the childs perspective on removal, the existing relationship between the child and members of the household, and the disruption to the childs schooling, social relationships, and physical or emotional health that may result from placement out of the home, and in the case of an Indian child, the childs connection to their tribe, extended family members, and tribal community. The bill would also require the social workers report to include placement options, including an assessment of the least disruptive alternatives to returning the child to the custody of their parent, guardian, or Indian custodian, and other measures that may be taken to alleviate disruption and minimize the harms of removal. The bill would require the court to determine whether less disruptive alternatives to removal were considered, as specified. The bill would, if the court finds that removal is necessary, require the court to set forth, in a written order or on the record, the childs placement and the basis for its findings, whether the placement complies with specified placement preferences, and would require the court to include any orders necessary to alleviate any disruption or harm to the child resulting from removal. By imposing additional duties on counties, the bill would impose a state-mandated local program.
This bill would incorporate additional changes to Section 319 of the Welfare and Institutions Code proposed by AB 81 and AB 448 to be operative only if this bill and AB 81, this bill and AB 448, or all 3 bills are enacted and this bill is enacted last.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing law establishes the jurisdiction of the juvenile court, which may adjudge children to be dependents of the court under certain circumstances, including when the child suffered or there is a substantial risk that the child will suffer serious physical harm, or a parent fails to provide the child with adequate food, clothing, shelter, or medical treatment. Existing law establishes the grounds for removal of a dependent child from the custody of the childs parents or guardian. Existing law requires the court, at the initial petition hearing, to examine the childs parents, guardians, Indian custodian, or other persons having relevant knowledge and hear the relevant evidence, and order the release of the child from custody unless a prima facie showing has been made that the child comes within the courts jurisdiction, the court finds that continuance in the parents or guardians home is contrary to the childs welfare, and any of a number of circumstances exist. Existing law requires the social worker to report to the court on the reasons why the child has been removed from the parents, guardians, or Indian custodians physical custody, the need, if any, for continued detention, and the available services and the referral methods to those services that could facilitate the return of the child to the custody of the childs parents, among other things.
This bill would require the social workers report to also include information regarding the short-term and long-term harms to the child that may result from their removal, including the childs perspective on removal, the existing relationship between the child and members of the household, and the disruption to the childs schooling, social relationships, and physical or emotional health that may result from placement out of the home, and in the case of an Indian child, the childs connection to their tribe, extended family members, and tribal community. The bill would also require the social workers report to include placement options, including an assessment of the least disruptive alternatives to returning the child to the custody of their parent, guardian, or Indian custodian, and other measures that may be taken to alleviate disruption and minimize the harms of removal. The bill would require the court to determine whether less disruptive alternatives to removal were considered, as specified. The bill would, if the court finds that removal is necessary, require the court to set forth, in a written order or on the record, the childs placement and the basis for its findings, whether the placement complies with specified placement preferences, and would require the court to include any orders necessary to alleviate any disruption or harm to the child resulting from removal. By imposing additional duties on counties, the bill would impose a state-mandated local program.
This bill would incorporate additional changes to Section 319 of the Welfare and Institutions Code proposed by AB 81 and AB 448 to be operative only if this bill and AB 81, this bill and AB 448, or all 3 bills are enacted and this bill is enacted last.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing law establishes the jurisdiction of the juvenile court, which may adjudge children to be dependents of the court under certain circumstances, including when the child suffered or there is a substantial risk that the child will suffer serious physical harm, or a parent fails to provide the child with adequate food, clothing, shelter, or medical treatment. Existing law establishes the grounds for removal of a dependent child from the custody of the childs parents or guardian. Existing law requires the court, at the initial petition hearing, to examine the childs parents, guardians, Indian custodian, or other persons having relevant knowledge and hear the relevant evidence, and order the release of the child from custody unless a prima facie showing has been made that the child comes within the courts jurisdiction, the court finds that continuance in the parents or guardians home is contrary to the childs welfare, and any of a number of circumstances exist. Existing law requires the social worker to report to the court on the reasons why the child has been removed from the parents, guardians, or Indian custodians physical custody, the need, if any, for continued detention, and the available services and the referral methods to those services that could facilitate the return of the child to the custody of the childs parents, among other things.
This bill would require the social workers report to also include information regarding the short-term and long-term harms to the child that may result from their removal, including the childs perspective on removal, the existing relationship between the child and members of the household, and the disruption to the childs schooling, social relationships, and physical or emotional health that may result from placement out of the home, and in the case of an Indian child, the childs connection to their tribe, extended family members, and tribal community. The bill would also require the social workers report to include placement options, including an assessment of the least disruptive alternatives to returning the child to the custody of their parent, guardian, or Indian custodian, and other measures that may be taken to alleviate disruption and minimize the harms of removal. The bill would require the court to determine whether less disruptive alternatives to removal were considered, as specified. The bill would, if the court finds that removal is necessary, require the court to set forth, in a written order or on the record, the childs placement and the basis for its findings, whether the placement complies with specified placement preferences, and would require the court to include any orders necessary to alleviate any disruption or harm to the child resulting from removal. By imposing additional duties on counties, the bill would impose a state-mandated local program.
This bill would incorporate additional changes to Section 319 of the Welfare and Institutions Code proposed by AB 81 and AB 448 to be operative only if this bill and AB 81, this bill and AB 448, or all 3 bills are enacted and this bill is enacted last.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing law establishes the jurisdiction of the juvenile court, which may adjudge children to be dependents of the court under certain circumstances, including when the child suffered or there is a substantial risk that the child will suffer serious physical harm, or a parent fails to provide the child with adequate food, clothing, shelter, or medical treatment. Existing law establishes the grounds for removal of a dependent child from the custody of the childs parents or guardian. Existing law requires the court, at the initial petition hearing, to examine the childs parents, guardians, Indian custodian, or other persons having relevant knowledge and hear the relevant evidence, and order the release of the child from custody unless a prima facie showing has been made that the child comes within the courts jurisdiction, the court finds that continuance in the parents or guardians home is contrary to the childs welfare, and any of a number of circumstances exist. Existing law requires the social worker to report to the court on the reasons why the child has been removed from the parents, guardians, or Indian custodians physical custody, the need, if any, for continued detention, and the available services and the referral methods to those services that could facilitate the return of the child to the custody of the childs parents, among other things.
This bill would require the social workers report to also include information regarding the short-term and long-term harms to the child that may result from their removal, including the childs perspective on removal, the existing relationship between the child and members of the household, and the disruption to the childs schooling, social relationships, and physical or emotional health that may result from placement out of the home, and in the case of an Indian child, the childs connection to their tribal community. tribe, extended family members, and tribal community. The bill would also require the social workers report to include the best placement option, placement options, including an assessment of the least disruptive alternatives to returning the child to the custody of their parent, guardian, or Indian custodian, and other measures that may be taken to alleviate disruption and minimize the harms of removal. The bill would require the court to, in determining whether continuance in the parents or guardians home is contrary to the childs welfare, consider the short-term and long-term harms to the child that may result from the continued removal by reviewing the social workers report and any other evidence in considering the previously mentioned factors of the harms of removal. The bill would require the court to determine whether less disruptive alternatives to removal were considered, as specified. The bill would, if the court finds that removal is necessary, require the court to set forth, in a written order or on the record, the childs placement and the basis for determining that the placement is the most appropriate and, if there were less disruptive alternatives, why those alternatives were not selected for the child, and any other measures to be taken in order to alleviate disruption and minimize the harms of removal for the child, among other things. its findings, whether the placement complies with specified placement preferences, and would require the court to include any orders necessary to alleviate any disruption or harm to the child resulting from removal. By imposing additional duties on counties, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing law establishes the jurisdiction of the juvenile court, which may adjudge children to be dependents of the court under certain circumstances, including when the child suffered or there is a substantial risk that the child will suffer serious physical harm, or a parent fails to provide the child with adequate food, clothing, shelter, or medical treatment. Existing law establishes the grounds for removal of a dependent child from the custody of the childs parents or guardian. Existing law requires the court, at the initial petition hearing, to examine the childs parents, guardians, Indian custodian, or other persons having relevant knowledge and hear the relevant evidence, and order the release of the child from custody unless a prima facie showing has been made that the child comes within the courts jurisdiction, the court finds that continuance in the parents or guardians home is contrary to the childs welfare, and any of a number of circumstances exist. Existing law requires the social worker to report to the court on the reasons why the child has been removed from the parents, guardians, or Indian custodians physical custody, the need, if any, for continued detention, and the available services and the referral methods to those services that could facilitate the return of the child to the custody of the childs parents, among other things.
This bill would require the social workers report to also include information regarding the short-term and long-term harms to the child that may result from their removal, including the childs attitude towards perspective on removal, the existing relationship between the child and members of the household, and the disruption to the childs schooling, social relationships, and physical or emotional health that may result from placement out of the home. home, and in the case of an Indian child, the childs connection to their tribal community. The bill would also require the social workers report to include the best placement option, including an assessment of the least disruptive alternatives to returning the child to the custody of their parent, guardian, or Indian custodian, and other measures that may be taken to alleviate disruption and minimize the harms of removal. The bill would require the court to, in determining whether continuance in the parents or guardians home is contrary to the childs welfare, consider the short-term and long-term harms to the child that may result from the continued removal by reviewing the social workers report and any other evidence in considering the previously mentioned factors of the harms of removal. The bill would, if the court finds that removal is necessary, require the court to set forth, in a written order or on the record, the childs placement and the basis for determining that the placement is the least disruptive alternative most appropriate and, if there were less disruptive alternatives, why those alternatives were not selected for the child, and any other measures to be taken in order to alleviate disruption and minimize the harms of removal for the child, among other things. By imposing additional duties on counties, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing law establishes the jurisdiction of the juvenile court, which may adjudge children to be dependents of the court under certain circumstances, including when the child suffered or there is a substantial risk that the child will suffer serious physical harm, or a parent fails to provide the child with adequate food, clothing, shelter, or medical treatment. Existing law establishes the grounds for removal of a dependent child from the custody of the childs parents or guardian. Existing law requires the court, at the initial petition hearing, to examine the childs parents, guardians, Indian custodian, or other persons having relevant knowledge and hear the relevant evidence, and order the release of the child from custody unless a prima facie showing has been made that the child comes within the courts jurisdiction, the court finds that continuance in the parents or guardians home is contrary to the childs welfare, and any of a number of circumstances exist. Existing law requires the social worker to report to the court on the reasons why the child has been removed from the parents, guardians, or Indian custodians physical custody, the need, if any, for continued detention, and the available services and the referral methods to those services that could facilitate the return of the child to the custody of the childs parents, among other things.
This bill would require the social workers report to also include information regarding the short-term and long-term harms to the child that may result from their removal, including the childs attitude towards removal, the existing relationship between the child and members of the household, and the disruption to the childs schooling, social relationships, and physical or emotional health that may result from placement out of the home. The bill would also require the social workers report to include the least disruptive alternatives to returning the child to the custody of their parent, guardian, or Indian custodian, and other measures that may be taken to alleviate disruption and minimize the harms of removal. The bill would require the court to, in determining whether continuance in the parents or guardians home is contrary to the childs welfare, consider the short-term and long-term harms to the child that may result from the continued removal by reviewing the social workers report and any other evidence in considering the previously mentioned factors. factors of the harms of removal. The bill would, if the court finds that removal is necessary, require the court to make a determination of its findings, as provided, and specify the measures to be taken to alleviate the disruption and minimize the harms of removal with the least disruptive alternatives in a written order or on the record. set forth, in a written order or on the record, the childs placement and the basis for determining that the placement is the least disruptive alternative for the child, and any other measures to be taken in order to alleviate disruption and minimize the harms of removal for the child, among other things. By imposing additional duties on counties, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing law establishes the jurisdiction of the juvenile court, which may adjudge children to be dependents of the court under certain circumstances, including when the child suffered or there is a substantial risk that the child will suffer serious physical harm, or a parent fails to provide the child with adequate food, clothing, shelter, or medical treatment. Existing law establishes the grounds for removal of a dependent child from the custody of the childs parents or guardian. Existing law requires the court, at the initial petition hearing, to examine the childs parents, guardians, Indian custodian, or other persons having relevant knowledge and hear the relevant evidence, and order the release of the child from custody unless a prima facie showing has been made that the child comes within the courts jurisdiction, the court finds that continuance in the parents or guardians home is contrary to the childs welfare, and any of a number of circumstances exist. Existing law requires the social worker to report to the court on the reasons why the child has been removed from the parents, guardians, or Indian custodians physical custody, the need, if any, for continued detention, and the available services and the referral methods to those services that could facilitate the return of the child to the custody of the childs parents, among other things.
This bill would require the court, in making the determination on whether to remove the child from their parent, guardian, or Indian custodian, to consider any likely harm to the child that may result from their removal by considering specific factors, including the childs attitude towards removal, ties to the parent, guardian, or Indian custodian, and relationships with other members of the household. The bill would require any predisposition reports prepared by the social worker to contain information regarding the likely harm the child may suffer because of the removal from their parent, guardian, or Indian custodian and list recommended steps to be taken to minimize this harm. By imposing additional duties on counties, the bill would impose a state-mandated local program.This bill would require the social workers report to also include information regarding the short-term and long-term harms to the child that may result from their removal, including the childs attitude towards removal, the existing relationship between the child and members of the household, and the disruption to the childs schooling, social relationships, and physical or emotional health that may result from placement out of the home. The bill would require the court to, in determining whether continuance in the parents or guardians home is contrary to the childs welfare, consider the short-term and long-term harms to the child that may result from the continued removal by reviewing the social workers report and any other evidence in considering the previously mentioned factors. The bill would, if the court finds that removal is necessary, require the court to make a determination of its findings, as provided, and specify the measures to be taken to alleviate the disruption and minimize the harms of removal with the least disruptive alternatives in a written order or on the record. By imposing additional duties on counties, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing law establishes the jurisdiction of the juvenile court, which may adjudge children to be dependents of the court under certain circumstances, including when the child suffered or there is a substantial risk that the child will suffer serious physical harm, or a parent fails to provide the child with adequate food, clothing, shelter, or medical treatment. Existing law establishes the grounds for removal of a dependent child from the custody of the childs parents or guardian. Existing law requires the court, at the initial petition hearing, to examine the childs parents, guardians, Indian custodian, or other persons having relevant knowledge and hear the relevant evidence, and order the release of the child from custody unless a prima facie showing has been made that the child comes within the courts jurisdiction, the court finds that continuance in the parents or guardians home is contrary to the childs welfare, and any of a number of circumstances exist.
This bill would require the court, in making the determination on whether to remove the child from their parent, guardian, or Indian custodian, to consider any likely harm to the child that may result from their removal by considering specific factors, including the childs attitude towards removal, ties to the parent, guardian, or Indian custodian, and relationships with other members of the household. The bill would require any predisposition reports prepared by the social worker to contain information regarding the likely harm the child may suffer because of the removal from their parent, guardian, or Indian custodian and list recommended steps to be taken to minimize this harm. By imposing additional duties on counties, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
(a)At the initial petition hearing, the court shall review the report described in subdivision (b) and examine the childs parents, guardians, Indian custodian, or other persons having relevant knowledge and hear the relevant evidence as the child, the childs parents or guardians, the childs Indian custodian, the petitioner, the Indian childs tribe, or their counsel desires to present. The court may examine the child, as provided in Section 350.
(b)The social worker shall report to the court on the reasons why the child has been removed from the parents, guardians, or Indian custodians physical custody, the need, if any, for continued detention, the available services and the referral methods to those services that could facilitate the return of the child to the custody of the childs parents, guardians, or Indian custodian, and whether there are any relatives who are able and willing to take temporary physical custody of the child. The report shall also include information regarding any short-term or long-term harms, or both short-term and long-term harms, to the child that may result from their removal from the custody of their parent, guardian, or Indian custodian, including, but not limited to, the information specified in subparagraph (A) of paragraph (2) of subdivision (c), the placement options, including an assessment of the least disruptive alternatives to returning the child to the custody of their parent, guardian, or Indian custodian, including compliance with the placement preferences set forth in Section 361.31 in the case of an Indian child, and measures that may be available to alleviate disruption and minimize the harms of removal. If it is known or there is reason to know the child is an Indian child, the report shall also include all of the following:
(1)A statement of the risk of imminent physical damage or harm to the Indian child and any evidence that the emergency removal or placement continues to be necessary to prevent the imminent physical damage or harm to the child.
(2)The steps taken to provide notice to the childs parents, custodians, and tribe about the hearing pursuant to this section.
(3)If the childs parents and Indian custodians are unknown, a detailed explanation of what efforts have been made to locate and contact them, including contact with the appropriate Bureau of Indian Affairs regional director.
(4)The residence and the domicile of the Indian child.
(5)If either the residence or the domicile of the Indian child is believed to be on a reservation or in an Alaska Native village, the name of the tribe affiliated with that reservation or village.
(6)The tribal affiliation of the child and of the parents or Indian custodians.
(7)A specific and detailed account of the circumstances that caused the Indian child to be taken into temporary custody.
(8)If the child is believed to reside or be domiciled on a reservation in which the tribe exercises exclusive jurisdiction over child custody matters, a statement of efforts that have been made and that are being made to contact the tribe and transfer the child to the tribes jurisdiction.
(9)A statement of the efforts that have been taken to assist the parents or Indian custodians so the Indian child may safely be returned to their custody.
(10)The steps taken to consult and collaborate with the tribe and the outcome of that consultation and collaboration.
(c)(1)The court shall order the release of the child from custody unless a prima facie showing has been made that the child comes within Section 300, the court finds that continuance in the parents or guardians home is contrary to the childs welfare, and any of the following circumstances exist:
(A)There is a substantial danger to the physical health of the child or the child is suffering severe emotional damage, and there are no reasonable means by which the childs physical or emotional health may be protected without removing the child from the parents or guardians physical custody.
(B)There is substantial evidence that a parent, guardian, or custodian of the child is likely to flee the jurisdiction of the court, and, in the case of an Indian child, fleeing the jurisdiction will place the child at risk of imminent physical damage or harm.
(C)The child has left a placement in which the child was placed by the juvenile court.
(D)The child indicates an unwillingness to return home, if the child has been physically or sexually abused by a person residing in the home.
(2)(A)The court shall determine whether less disruptive alternatives to removal were considered by the agency, such as factors related to the impact of removal on the child, including, but not limited to, the following:
(i)A description of the relationship between the child and their parents, guardians, or Indian custodians, based on the childs perspective, and the childs response to removal and, where developmentally appropriate, their perspective on removal.
(ii)The relationship between the child and any siblings.
(iii)The relationship between the child and other members of the household.
(iv)Any disruption to the childs schooling, social relationships, and physical or emotional health that may result from placement out of the home, and in the case of an Indian child, any impact on the childs connection to their tribe, extended family members, and tribal community.
(B)If the court finds that removal is necessary under paragraph (1), the court shall, in a written order or on the record, set forth all of the following:
(i)The basis for its findings and the evidence relied on.
(ii)Its determination regarding the childs placement, including whether it complies with the placement preferences set forth in Section 361.31 and less disruptive alternatives.
(iii)Include any orders necessary to alleviate any disruption or harm to the child resulting from removal.
(C)Nothing in this paragraph permits a child to be released to a parent, legal guardian, or Indian custodian, or to be placed in an unsafe placement, due solely to the court determining the child was not offered less disruptive alternatives.
(d)If the court knows or there is reason to know the child is an Indian child, the court may only detain the Indian child if it also finds that detention is necessary to prevent imminent physical damage or harm. The court shall state on the record the facts supporting this finding.
(e)(1)If the hearing pursuant to this section is continued pursuant to Section 322 or for any other reason, the court shall find that the continuance of the child in the parents or guardians home is contrary to the childs welfare at the initial petition hearing or order the release of the child from custody.
(2)If the court knows or has reason to know the child is an Indian child, the hearing pursuant to this section may not be continued beyond 30 days unless the court finds all of the following:
(A)Restoring the child to the parent, parents, or Indian custodian would subject the child to imminent physical damage or harm.
(B)The court is unable to transfer the proceeding to the jurisdiction of the appropriate Indian tribe.
(C)It is not possible to initiate an Indian child custody proceeding as defined in Section 224.1.
(f)(1)The court shall also make a determination on the record, referencing the social workers report or other evidence relied upon, as to whether reasonable efforts were made to prevent or eliminate the need for removal of the child from their home, pursuant to subdivision (b) of Section 306, and whether there are available services that would prevent the need for further detention. Services to be considered for purposes of making this determination are case management, counseling, emergency shelter care, emergency in-home caretakers, out-of-home respite care, teaching and demonstrating homemakers, parenting training, transportation, and any other child welfare services authorized by the State Department of Social Services pursuant to Chapter 5 (commencing with Section 16500) of Part 4 of Division 9. The court shall also review whether the social worker has considered whether a referral to public assistance services pursuant to Chapter 2 (commencing with Section 11200) and Chapter 7 (commencing with Section 14000) of Part 3 of, Chapter 1 (commencing with Section 17000) of Part 5 of, and Chapter 10 (commencing with Section 18900) of Part 6 of, Division 9 would have eliminated the need to take temporary custody of the child or would prevent the need for further detention. This determination shall apply to each child individually, and the considerations shall be tailored to the individual child.
(2)If the court knows or has reason to know the child is an Indian child, the court shall also determine whether the county welfare department made active efforts to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian family. The court shall order the county welfare department to initiate or continue services or programs pending disposition pursuant to Section 358.
(3)If the child can be returned to the custody of their parent, guardian, or Indian custodian through the provision of those services, the court shall place the child with their parent, guardian, or Indian custodian and order that the services shall be provided. If the child cannot be returned to the physical custody of their parent or guardian, the court shall determine if there is a relative who is able and willing to care for the child, and has been assessed pursuant to Section 361.4.
(4)In order to preserve the bond between the child and the parent and to facilitate family reunification, the court shall consider whether the child can be returned to the custody of their parent who is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with their parent. The fact that the parent is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with their parent shall not be, for that reason alone, prima facie evidence of substantial danger. The court shall specify the factual basis for its conclusion that the return of the child to the custody of their parent would pose a substantial danger or would not pose a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child.
(g)If a court orders a child detained, the court shall state the facts on which the decision is based, specify why the initial removal was necessary, reference the social workers report or other evidence relied upon to make its determination whether continuance in the home of the parent or legal guardian is contrary to the childs welfare, order temporary placement and care of the child to be vested with the county child welfare department pending the hearing held pursuant to Section 355 or further order of the court, and order services to be provided as soon as possible to reunify the child and their family, if appropriate.
(h)(1)(A)If the child is not released from custody, the court may order the temporary placement of the child in any of the following for a period not to exceed 15 judicial days:
(i)The home of a relative, an extended family member, as defined in Section 224.1 and Section 1903 of the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.), or a nonrelative extended family member, as defined in Section 362.7, that has been assessed pursuant to Section 361.4.
(ii)The approved home of a resource family, as described in Section 16519.5, or a home licensed or approved by the Indian childs tribe.
(iii)An emergency shelter or other suitable licensed place.
(iv)A place exempt from licensure designated by the juvenile court.
(B)A youth homelessness prevention center licensed by the State Department of Social Services pursuant to Section 1502.35 of the Health and Safety Code shall not be a placement option pursuant to this section.
(C)If the court knows or has reason to know that the child is an Indian child, the Indian child shall be detained in a home that complies with the placement preferences set forth in Section 361.31 and in the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.), unless the court finds good cause exists pursuant to Section 361.31 not to follow the placement preferences. If the court finds good cause not to follow the placement preferences for detention, this finding does not affect the requirement that a diligent search be made for a subsequent placement within the placement preferences.
(2)Relatives shall be given preferential consideration for placement of the child. As used in this section, relative means an adult who is related to the child by blood, adoption, or affinity within the fifth degree of kinship, including stepparents, stepsiblings, and all relatives whose status is preceded by the words great, great-great, or grand, or the spouse of any of these persons, even if the marriage was terminated by death or dissolution.
(3)When placing in the home of a relative, an extended family member, as defined in Section 224.1 and Section 1903 of the federal Indian Child Welfare Act of 1978, or nonrelative extended family member, the court shall consider the recommendations of the social worker based on the assessment pursuant to Section 361.4 of the home of the relative, extended family member, or nonrelative extended family member, including the results of a criminal records check and prior child abuse allegations, if any, before ordering that the child be placed with a relative or nonrelative extended family member. The court may authorize the placement of a child on a temporary basis in the home of a relative, regardless of the status of any criminal record exemption or resource family approval, if the court finds that the placement does not pose a risk to the health and safety of the child. The court shall order the parent to disclose to the social worker the names, residences, and any known identifying information of any maternal or paternal relatives of the child. The social worker shall initiate the assessment pursuant to Section 361.3 of any relative to be considered for continuing placement.
(i)In the case of an Indian child, any order detaining the child pursuant to this section shall be considered an emergency removal within the meaning of Section 1922 of the federal Indian Child Welfare Act of 1978. The emergency proceeding shall terminate if the child is returned to the custody of the parent, parents, or Indian custodian, the child has been transferred to the custody and jurisdiction of the childs tribe, or the agency or another party to the proceeding recommends that the child be removed from the physical custody of their parent or parents or Indian custodian pursuant to Section 361 or 361.2.
(j)(1)At the initial hearing upon the petition filed in accordance with subdivision (c) of Rule 5.520 of the California Rules of Court or anytime thereafter up until the time that the minor is adjudged a dependent child of the court or a finding is made dismissing the petition, the court may temporarily limit the right of the parent or guardian to make educational or developmental services decisions for the child and temporarily appoint a responsible adult to make educational or developmental services decisions for the child if all of the following conditions are found:
(A)The parent or guardian is unavailable, unable, or unwilling to exercise educational or developmental services rights for the child.
(B)The county placing agency has made diligent efforts to locate and secure the participation of the parent or guardian in educational or developmental services decisionmaking.
(C)The childs educational and developmental services needs cannot be met without the temporary appointment of a responsible adult.
(2)If the court limits the parents educational rights under this subdivision, the court shall determine whether there is a responsible adult who is a relative, nonrelative extended family member, or other adult known to the child and who is available and willing to serve as the childs educational representative before appointing an educational representative or surrogate who is not known to the child.
(3)If the court cannot identify a responsible adult to make educational decisions for the child and the appointment of a surrogate parent, as defined in subdivision (a) of Section 56050 of the Education Code, is not warranted, the court may, with the input of any interested person, make educational decisions for the child. If the child is receiving services from a regional center, the provision of any developmental services related to the courts decision shall be consistent with the childs individual program plan and pursuant to the Lanterman Developmental Disabilities Services Act (Division 4.5 (commencing with Section 4500)). If the court cannot identify a responsible adult to make developmental services decisions for the child, the court may, with the input of any interested person, make developmental services decisions for the child. If the court makes educational or developmental services decisions for the child, the court shall also issue appropriate orders to ensure that every effort is made to identify a responsible adult to make future educational or developmental services decisions for the child.
(4)A temporary appointment of a responsible adult and temporary limitation on the right of the parent or guardian to make educational or developmental services decisions for the child shall be specifically addressed in the court order. An order made under this section shall expire at the conclusion of the hearing held pursuant to Section 361 or upon dismissal of the petition. Upon the entering of disposition orders, additional needed limitation on the parents or guardians educational or developmental services rights shall be addressed pursuant to Section 361.
(5)This section does not remove the obligation to appoint surrogate parents for students with disabilities who are without parental representation in special education procedures, as required by state and federal law, including Section 1415(b)(2) of Title 20 of the United States Code, Section 56050 of the Education Code, Section 7579.5 of the Government Code, and Rule 5.650 of the California Rules of Court.
(6)If the court appoints a developmental services decisionmaker pursuant to this section, the developmental services decisionmaker shall have the authority to access the childs information and records pursuant to subdivision (u) of Section 4514 and paragraph (23) of subdivision (a) of Section 5328, and to act on the childs behalf for the purposes of the individual program plan process pursuant to Sections 4646, 4646.5, and 4648 and the fair hearing process pursuant to Chapter 7 (commencing with Section 4700) of Division 4.5, and as set forth in the court order.
(k)For a placement made on or after October 1, 2021, each temporary placement of the child pursuant to subdivision (h) in a short-term residential therapeutic program shall comply with the requirements of Section 4096 and be reviewed by the court pursuant to Section 361.22.
(l)For a placement made on or after July 1, 2022, each temporary placement of the child pursuant to subdivision (h) in a community treatment facility shall comply with the requirements of Section 4096 and be reviewed by the court pursuant to Section 361.22.
SEC. 1.1.Section 319 of the Welfare and Institutions Code is amended to read:319.(a)At the initial petition hearing, the court shall review the report described in subdivision (b) and examine the childs parents, guardians, Indian custodian, or other persons having relevant knowledge and hear the relevant evidence as the child, the childs parents or guardians, the childs Indian custodian, the petitioner, the Indian childs tribe, or their counsel desires to present. The court may examine the child, as provided in Section 350.
(b)The social worker shall report to the court on the reasons why the child has been removed from the parents, guardians, or Indian custodians physical custody, the need, if any, for continued detention, the available services and the referral methods to those services that could facilitate the return of the child to the custody of the childs parents, guardians, or Indian custodian, and whether there are any relatives who are able and willing to take temporary physical custody of the child. The report shall also include information regarding any short-term or long-term harms, or both short-term and long-term harms, to the child that may result from their removal from the custody of their parent, guardian, or Indian custodian, including, but not limited to, the information specified in subparagraph (A) of paragraph (2) of subdivision (c), the placement options, including an assessment of the least disruptive alternatives to returning the child to the custody of their parent, guardian, or Indian custodian, including compliance with the placement preferences set forth in Section 361.31 in the case of an Indian child, and measures that may be available to alleviate disruption and minimize the harms of removal. If it is known or there is reason to know the child is an Indian child, the report shall also include all of the following:
(1)A statement of the risk of imminent physical damage or harm to the Indian child and any evidence that the emergency removal or placement continues to be necessary to prevent the imminent physical damage or harm to the child.
(2)The steps taken to provide notice to the childs parents, custodians, and tribe about the hearing pursuant to this section.
(3)If the childs parents and Indian custodians are unknown, a detailed explanation of what efforts have been made to locate and contact them, including contact with the appropriate Bureau of Indian Affairs regional director.
(4)The residence and the domicile of the Indian child.
(5)If either the residence or the domicile of the Indian child is believed to be on a reservation or in an Alaska Native village, the name of the tribe affiliated with that reservation or village.
(6)The tribal affiliation of the child and of the parents or Indian custodians.
(7)A specific and detailed account of the circumstances that caused the Indian child to be taken into temporary custody.
(8)If the child is believed to reside or be domiciled on a reservation in which the tribe exercises exclusive jurisdiction over child custody matters, a statement of efforts that have been made and that are being made to contact the tribe and transfer the child to the tribes jurisdiction.
(9)A statement of the efforts that have been taken to assist the parents or Indian custodians so the Indian child may safely be returned to their custody.
(10)The steps taken to consult and collaborate with the tribe and the outcome of that consultation and collaboration.
(c)(1)The court shall order the release of the child from custody unless a prima facie showing has been made that the child comes within Section 300, the court finds that continuance in the parents or guardians home is contrary to the childs welfare, and any of the following circumstances exist:
(A)There is a substantial danger to the physical health of the child or the child is suffering severe emotional damage, and there are no reasonable means by which the childs physical or emotional health may be protected without removing the child from the parents or guardians physical custody.
(B)There is substantial evidence that a parent, guardian, or custodian of the child is likely to flee the jurisdiction of the court, and, in the case of an Indian child, fleeing the jurisdiction will place the child at risk of imminent physical damage or harm.
(C)The child has left a placement in which the child was placed by the juvenile court.
(D)The child indicates an unwillingness to return home, if the child has been physically or sexually abused by a person residing in the home.
(2)(A)The court shall determine whether less disruptive alternatives to removal were considered by the agency, such as factors related to the impact of removal on the child, including, but not limited to, the following:
(i)A description of the relationship between the child and their parents, guardians, or Indian custodians, based on the childs perspective, and the childs response to removal and, where developmentally appropriate, their perspective on removal.
(ii)The relationship between the child and any siblings.
(iii)The relationship between the child and other members of the household.
(iv)Any disruption to the childs schooling, social relationships, and physical or emotional health that may result from placement out of the home, and in the case of an Indian child, any impact on the childs connection to their tribe, extended family members, and tribal community.
(B)If the court finds that removal is necessary under paragraph (1), the court shall, in a written order or on the record, set forth all of the following:
(i)The basis for its findings and the evidence relied on.
(ii)Its determination regarding the childs placement, including whether it complies with the placement preferences set forth in Section 361.31 and less disruptive alternatives.
(iii)Include any orders necessary to alleviate any disruption or harm to the child resulting from removal.
(C)Nothing in this paragraph permits a child to be released to a parent, legal guardian, or Indian custodian, or to be placed in an unsafe placement, due solely to the court determining the child was not offered less disruptive alternatives.
(d)If the court knows or there is reason to know the child is an Indian child, the court may only detain the Indian child if it also finds that detention is necessary to prevent imminent physical damage or harm. The court shall state on the record the facts supporting this finding.
(e)(1)If the hearing pursuant to this section is continued pursuant to Section 322 or for any other reason, the court shall find that the continuance of the child in the parents or guardians home is contrary to the childs welfare at the initial petition hearing or order the release of the child from custody.
(2)If the court knows or has reason to know the child is an Indian child, the hearing pursuant to this section may not be continued beyond 30 days unless the court finds all of the following:
(A)Restoring the child to the parent, parents, or Indian custodian would subject the child to imminent physical damage or harm.
(B)The court is unable to transfer the proceeding to the jurisdiction of the appropriate Indian tribe.
(C)It is not possible to initiate an Indian child custody proceeding as defined in Section 224.1.
(f)(1)The court shall also make a determination on the record, referencing the social workers report or other evidence relied upon, as to whether reasonable efforts were made to prevent or eliminate the need for removal of the child from their home, pursuant to subdivision (b) of Section 306, and whether there are available services that would prevent the need for further detention. Services to be considered for purposes of making this determination are case management, counseling, emergency shelter care, emergency in-home caretakers, out-of-home respite care, teaching and demonstrating homemakers, parenting training, transportation, and any other child welfare services authorized by the State Department of Social Services pursuant to Chapter 5 (commencing with Section 16500) of Part 4 of Division 9. The court shall also review whether the social worker has considered whether a referral to public assistance services pursuant to Chapter 2 (commencing with Section 11200) and Chapter 7 (commencing with Section 14000) of Part 3 of, Chapter 1 (commencing with Section 17000) of Part 5 of, and Chapter 10 (commencing with Section 18900) of Part 6 of, Division 9 would have eliminated the need to take temporary custody of the child or would prevent the need for further detention. This determination shall apply to each child individually, and the considerations shall be tailored to the individual child.
(2)If the court knows or has reason to know the child is an Indian child, the court shall also determine whether the county welfare department made active efforts to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian family. The court shall order the county welfare department to initiate or continue services or programs pending disposition pursuant to Section 358.
(3)If the child can be returned to the custody of their parent, guardian, or Indian custodian through the provision of those services, the court shall place the child with their parent, guardian, or Indian custodian and order that the services shall be provided. If the child cannot be returned to the physical custody of their parent or guardian, the court shall determine if there is a relative who is able and willing to care for the child, and has been assessed pursuant to Section 361.4.
(4)In order to preserve the bond between the child and the parent and to facilitate family reunification, the court shall consider whether the child can be returned to the custody of their parent who is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with their parent. The fact that the parent is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with their parent shall not be, for that reason alone, prima facie evidence of substantial danger. The court shall specify the factual basis for its conclusion that the return of the child to the custody of their parent would pose a substantial danger or would not pose a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child.
(g)If a court orders a child detained, the court shall state the facts on which the decision is based, specify why the initial removal was necessary, reference the social workers report or other evidence relied upon to make its determination whether continuance in the home of the parent or legal guardian is contrary to the childs welfare, order temporary placement and care of the child to be vested with the county child welfare department pending the hearing held pursuant to Section 355 or further order of the court, and order services to be provided as soon as possible to reunify the child and their family, if appropriate.
(h)(1)(A)If the child is not released from custody, the court may order the temporary placement of the child in any of the following for a period not to exceed 15 judicial days:
(i)The home of a relative, an extended family member, as defined in Section 224.1 and Section 1903 of the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.), or a nonrelative extended family member, as defined in Section 362.7, that has been assessed pursuant to Section 361.4.
(ii)The approved home of a resource family, as described in Section 16519.5, or a home licensed or approved by the Indian childs tribe.
(iii)An emergency shelter or other suitable licensed place.
(iv)A place exempt from licensure designated by the juvenile court.
(B)A youth homelessness prevention center licensed by the State Department of Social Services pursuant to Section 1502.35 of the Health and Safety Code shall not be a placement option pursuant to this section.
(C)If the court knows or has reason to know that the child is an Indian child, the Indian child shall be detained in a home that complies with the placement preferences set forth in Section 361.31 and in the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.), unless the court finds good cause exists pursuant to Section 361.31 not to follow the placement preferences. If the court finds good cause not to follow the placement preferences for detention, this finding does not affect the requirement that a diligent search be made for a subsequent placement within the placement preferences.
(2)Relatives shall be given preferential consideration for placement of the child. As used in this section, relative means an adult who is related to the child by blood, adoption, or affinity within the fifth degree of kinship, including stepparents, stepsiblings, and all relatives whose status is preceded by the words great, great-great, or grand, or the spouse of any of these persons, even if the marriage was terminated by death or dissolution.
(3)When placing in the home of a relative, an extended family member, as defined in Section 224.1 and Section 1903 of the federal Indian Child Welfare Act of 1978, or nonrelative extended family member, the court shall consider the recommendations of the social worker based on the assessment pursuant to Section 361.4 of the home of the relative, extended family member, or nonrelative extended family member, including the results of a criminal records check and prior child abuse allegations, if any, before ordering that the child be placed with a relative or nonrelative extended family member. The court may authorize the placement of a child on a temporary basis in the home of a relative, regardless of the status of any criminal record exemption or resource family approval, if the court finds that the placement does not pose a risk to the health and safety of the child. The court shall order the parent to disclose to the social worker the names, residences, and any known identifying information of any maternal or paternal relatives of the child. The social worker shall initiate the assessment pursuant to Section 361.3 of any relative to be considered for continuing placement.
(i)In the case of an Indian child, any order detaining the child pursuant to this section shall be considered an emergency removal within the meaning of Section 224.1 of this code, and as described in subdivision (g) of Section 305.5, and Section 1922 of the federal Indian Child Welfare Act of 1978. The emergency proceeding shall terminate if the child is returned to the custody of the parent, parents, or Indian custodian, the child has been transferred to the custody and jurisdiction of the childs tribe, or the agency or another party to the proceeding recommends that the child be removed from the physical custody of their parent or parents or Indian custodian pursuant to Section 361 or 361.2.
(j)(1)At the initial hearing upon the petition filed in accordance with subdivision (c) of Rule 5.520 of the California Rules of Court or anytime thereafter up until the time that the minor is adjudged a dependent child of the court or a finding is made dismissing the petition, the court may temporarily limit the right of the parent or guardian to make educational or developmental services decisions for the child and temporarily appoint a responsible adult to make educational or developmental services decisions for the child if all of the following conditions are found:
(A)The parent or guardian is unavailable, unable, or unwilling to exercise educational or developmental services rights for the child.
(B)The county placing agency has made diligent efforts to locate and secure the participation of the parent or guardian in educational or developmental services decisionmaking.
(C)The childs educational and developmental services needs cannot be met without the temporary appointment of a responsible adult.
(2)If the court limits the parents educational rights under this subdivision, the court shall determine whether there is a responsible adult who is a relative, nonrelative extended family member, or other adult known to the child and who is available and willing to serve as the childs educational representative before appointing an educational representative or surrogate who is not known to the child.
(3)If the court cannot identify a responsible adult to make educational decisions for the child and the appointment of a surrogate parent, as defined in subdivision (a) of Section 56050 of the Education Code, is not warranted, the court may, with the input of any interested person, make educational decisions for the child. If the child is receiving services from a regional center, the provision of any developmental services related to the courts decision shall be consistent with the childs individual program plan and pursuant to the Lanterman Developmental Disabilities Services Act (Division 4.5 (commencing with Section 4500)). If the court cannot identify a responsible adult to make developmental services decisions for the child, the court may, with the input of any interested person, make developmental services decisions for the child. If the court makes educational or developmental services decisions for the child, the court shall also issue appropriate orders to ensure that every effort is made to identify a responsible adult to make future educational or developmental services decisions for the child.
(4)A temporary appointment of a responsible adult and temporary limitation on the right of the parent or guardian to make educational or developmental services decisions for the child shall be specifically addressed in the court order. An order made under this section shall expire at the conclusion of the hearing held pursuant to Section 361 or upon dismissal of the petition. Upon the entering of disposition orders, additional needed limitation on the parents or guardians educational or developmental services rights shall be addressed pursuant to Section 361.
(5)This section does not remove the obligation to appoint surrogate parents for students with disabilities who are without parental representation in special education procedures, as required by state and federal law, including Section 1415(b)(2) of Title 20 of the United States Code, Section 56050 of the Education Code, Section 7579.5 of the Government Code, and Rule 5.650 of the California Rules of Court.
(6)If the court appoints a developmental services decisionmaker pursuant to this section, the developmental services decisionmaker shall have the authority to access the childs information and records pursuant to subdivision (u) of Section 4514 and paragraph (23) of subdivision (a) of Section 5328, and to act on the childs behalf for the purposes of the individual program plan process pursuant to Sections 4646, 4646.5, and 4648 and the fair hearing process pursuant to Chapter 7 (commencing with Section 4700) of Division 4.5, and as set forth in the court order.
(k)For a placement made on or after October 1, 2021, each temporary placement of the child pursuant to subdivision (h) in a short-term residential therapeutic program shall comply with the requirements of Section 4096 and be reviewed by the court pursuant to Section 361.22.
(l)For a placement made on or after July 1, 2022, each temporary placement of the child pursuant to subdivision (h) in a community treatment facility shall comply with the requirements of Section 4096 and be reviewed by the court pursuant to Section 361.22.
SEC. 1.2.Section 319 of the Welfare and Institutions Code is amended to read:319.(a)At the initial petition hearing, the court shall review the report described in subdivision (b) and examine the childs parents, guardians, Indian custodian, or other persons having relevant knowledge and hear the relevant evidence as the child, the childs parents or guardians, the childs Indian custodian, the petitioner, the Indian childs tribe, or their counsel desires to present. The court may examine the child, as provided in Section 350.
(b)The social worker shall report to the court on the reasons why the child has been removed from the parents, guardians, or Indian custodians physical custody; the need, if any, for continued detention; and the available services and the referral methods to those services that could facilitate the return of the child to the custody of the childs parents, guardians, or Indian custodian; and shall document their efforts, and in the case of an Indian child, the active efforts as defined in subdivision (f) of Section 224.1, and results of those efforts by the social worker to locate any relatives or kin who could provide family support or possible placement of the child or nonminor dependent and the names of those relatives or kin. The report shall also include information regarding any short-term or long-term harms, or both short-term and long-term harms, to the child that may result from their removal from the custody of their parent, guardian, or Indian custodian, including, but not limited to, the information specified in subparagraph (A) of paragraph (2) of subdivision (c), the placement options, including an assessment of the least disruptive alternatives to returning the child to the custody of their parent, guardian, or Indian custodian, including compliance with the placement preferences set forth in Section 361.31 in the case of an Indian child, and measures that may be available to alleviate disruption and minimize the harms of removal. If it is known or there is reason to know the child is an Indian child, the report shall also include all of the following:
(1)A statement of the risk of imminent physical damage or harm to the Indian child and any evidence that the emergency removal or placement continues to be necessary to prevent the imminent physical damage or harm to the child.
(2)The steps taken to provide notice to the childs parents, custodians, and tribe about the hearing pursuant to this section.
(3)If the childs parents and Indian custodians are unknown, a detailed explanation of what efforts have been made to locate and contact them, including contact with the appropriate Bureau of Indian Affairs regional director.
(4)The residence and the domicile of the Indian child.
(5)If either the residence or the domicile of the Indian child is believed to be on a reservation or in an Alaska Native village, the name of the tribe affiliated with that reservation or village.
(6)The tribal affiliation of the child and of the parents or Indian custodians.
(7)A specific and detailed account of the circumstances that caused the Indian child to be taken into temporary custody.
(8)If the child is believed to reside or be domiciled on a reservation in which the tribe exercises exclusive jurisdiction over child custody matters, a statement of efforts that have been made and that are being made to contact the tribe and transfer the child to the tribes jurisdiction.
(9)A statement of the efforts that have been taken to assist the parents or Indian custodians so the Indian child may safely be returned to their custody.
(10)The steps taken to consult and collaborate with the tribe and the outcome of that consultation and collaboration.
(c)(1)The court shall order the release of the child from custody unless a prima facie showing has been made that the child comes within Section 300, the court finds that continuance in the parents or guardians home is contrary to the childs welfare, and any of the following circumstances exist:
(A)There is a substantial danger to the physical health of the child or the child is suffering severe emotional damage, and there are no reasonable means by which the childs physical or emotional health may be protected without removing the child from the parents or guardians physical custody.
(B)There is substantial evidence that a parent, guardian, or custodian of the child is likely to flee the jurisdiction of the court, and, in the case of an Indian child, fleeing the jurisdiction will place the child at risk of imminent physical damage or harm.
(C)The child has left a placement in which the child was placed by the juvenile court.
(D)The child indicates an unwillingness to return home, if the child has been physically or sexually abused by a person residing in the home.
(2)(A)The court shall determine whether less disruptive alternatives to removal were considered by the agency, such as factors related to the impact of removal on the child, including, but not limited to, the following:
(i)A description of the relationship between the child and their parents, guardians, or Indian custodians, based on the childs perspective, and the childs response to removal and, where developmentally appropriate, their perspective on removal.
(ii)The relationship between the child and any siblings.
(iii)The relationship between the child and other members of the household.
(iv)Any disruption to the childs schooling, social relationships, and physical or emotional health that may result from placement out of the home, and in the case of an Indian child, any impact on the childs connection to their tribe, extended family members, and tribal community.
(B)If the court finds that removal is necessary under paragraph (1), the court shall, in a written order or on the record, set forth all of the following:
(i)The basis for its findings and the evidence relied on.
(ii)Its determination regarding the childs placement, including whether it complies with the placement preferences set forth in Section 361.31 and less disruptive alternatives.
(iii)Include any orders necessary to alleviate any disruption or harm to the child resulting from removal.
(C)Nothing in this paragraph permits a child to be released to a parent, legal guardian, or Indian custodian, or to be placed in an unsafe placement, due solely to the court determining the child was not offered less disruptive alternatives.
(d)If the court knows or there is reason to know the child is an Indian child, the court may only detain the Indian child if it also finds that detention is necessary to prevent imminent physical damage or harm. The court shall state on the record the facts supporting this finding.
(e)(1)If the hearing pursuant to this section is continued pursuant to Section 322 or for any other reason, the court shall find that the continuance of the child in the parents or guardians home is contrary to the childs welfare at the initial petition hearing or order the release of the child from custody.
(2)If the court knows or has reason to know the child is an Indian child, the hearing pursuant to this section may not be continued beyond 30 days unless the court finds all of the following:
(A)Restoring the child to the parent, parents, or Indian custodian would subject the child to imminent physical damage or harm.
(B)The court is unable to transfer the proceeding to the jurisdiction of the appropriate Indian tribe.
(C)It is not possible to initiate an Indian child custody proceeding as defined in Section 224.1.
(f)(1)The court shall also make a determination on the record, referencing the social workers report or other evidence relied upon, as to whether reasonable efforts were made to prevent or eliminate the need for removal of the child from their home, pursuant to subdivision (b) of Section 306, and whether there are available services that would prevent the need for further detention. Services to be considered for purposes of making this determination are case management, counseling, emergency shelter care, emergency in-home caretakers, out-of-home respite care, teaching and demonstrating homemakers, parenting training, transportation, and any other child welfare services authorized by the State Department of Social Services pursuant to Chapter 5 (commencing with Section 16500) of Part 4 of Division 9. The court shall also review whether the social worker has considered whether a referral to public assistance services pursuant to Chapter 2 (commencing with Section 11200) and Chapter 7 (commencing with Section 14000) of Part 3 of, Chapter 1 (commencing with Section 17000) of Part 5 of, and Chapter 10 (commencing with Section 18900) of Part 6 of, Division 9 would have eliminated the need to take temporary custody of the child or would prevent the need for further detention. This determination shall apply to each child individually, and the considerations shall be tailored to the individual child.
(2)If the court knows or has reason to know the child is an Indian child, the court shall also determine whether the county welfare department made active efforts to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian family. The court shall order the county welfare department to initiate or continue services or programs pending disposition pursuant to Section 358.
(3)If the child can be returned to the custody of their parent, guardian, or Indian custodian through the provision of those services, the court shall place the child with their parent, guardian, or Indian custodian and order that the services shall be provided. If the child cannot be returned to the physical custody of their parent or guardian, the court shall determine if there is a relative who is able and willing to care for the child, and has been assessed pursuant to Section 361.4.
(4)In order to preserve the bond between the child and the parent and to facilitate family reunification, the court shall consider whether the child can be returned to the custody of their parent who is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with their parent. The fact that the parent is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with their parent shall not be, for that reason alone, prima facie evidence of substantial danger. The court shall specify the factual basis for its conclusion that the return of the child to the custody of their parent would pose a substantial danger or would not pose a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child.
(g)If a court orders a child detained, the court shall state the facts on which the decision is based, specify why the initial removal was necessary, reference the social workers report or other evidence relied upon to make its determination whether continuance in the home of the parent or legal guardian is contrary to the childs welfare, order temporary placement and care of the child to be vested with the county child welfare department pending the hearing held pursuant to Section 355 or further order of the court, and order services to be provided as soon as possible to reunify the child and their family, if appropriate.
(h)(1)(A)If the child is not released from custody, the court may order the temporary placement of the child in any of the following for a period not to exceed 15 judicial days:
(i)The home of a relative, an extended family member, as defined in Section 224.1 and Section 1903 of the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.), or a nonrelative extended family member, as defined in Section 362.7, that has been assessed pursuant to Section 361.4.
(ii)The approved home of a resource family, as described in Section 16519.5, or a home licensed or approved by the Indian childs tribe.
(iii)An emergency shelter or other suitable licensed place.
(iv)A place exempt from licensure designated by the juvenile court.
(B)A youth homelessness prevention center licensed by the State Department of Social Services pursuant to Section 1502.35 of the Health and Safety Code shall not be a placement option pursuant to this section.
(C)If the court knows or has reason to know that the child is an Indian child, the Indian child shall be detained in a home that complies with the placement preferences set forth in Section 361.31 and in the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.), unless the court finds good cause exists pursuant to Section 361.31 not to follow the placement preferences. If the court finds good cause not to follow the placement preferences for detention, this finding does not affect the requirement that a diligent search be made for a subsequent placement within the placement preferences.
(2)Relatives shall be given preferential consideration for placement of the child. As used in this section, relative means an adult who is related to the child by blood, adoption, or affinity within the fifth degree of kinship, including stepparents, stepsiblings, and all relatives whose status is preceded by the words great, great-great, or grand, or the spouse of any of these persons, even if the marriage was terminated by death or dissolution.
(3)When placing in the home of a relative, an extended family member, as defined in Section 224.1 and Section 1903 of the federal Indian Child Welfare Act of 1978, or nonrelative extended family member, the court shall consider the recommendations of the social worker based on the assessment pursuant to Section 361.4 of the home of the relative, extended family member, or nonrelative extended family member, including the results of a criminal records check and prior child abuse allegations, if any, before ordering that the child be placed with a relative or nonrelative extended family member. The court may authorize the placement of a child on a temporary basis in the home of a relative, regardless of the status of any criminal record exemption or resource family approval, if the court finds that the placement does not pose a risk to the health and safety of the child. The court shall order the parent to disclose to the social worker the names, residences, and any known identifying information of any maternal or paternal relatives of the child. The social worker shall initiate the assessment pursuant to Section 361.3 of any relative to be considered for continuing placement.
(i)In the case of an Indian child, any order detaining the child pursuant to this section shall be considered an emergency removal within the meaning of Section 1922 of the federal Indian Child Welfare Act of 1978. The emergency proceeding shall terminate if the child is returned to the custody of the parent, parents, or Indian custodian, the child has been transferred to the custody and jurisdiction of the childs tribe, or the agency or another party to the proceeding recommends that the child be removed from the physical custody of their parent or parents or Indian custodian pursuant to Section 361 or 361.2.
(j)(1)At the initial hearing upon the petition filed in accordance with subdivision (c) of Rule 5.520 of the California Rules of Court or anytime thereafter up until the time that the minor is adjudged a dependent child of the court or a finding is made dismissing the petition, the court may temporarily limit the right of the parent or guardian to make educational or developmental services decisions for the child and temporarily appoint a responsible adult to make educational or developmental services decisions for the child if all of the following conditions are found:
(A)The parent or guardian is unavailable, unable, or unwilling to exercise educational or developmental services rights for the child.
(B)The county placing agency has made diligent efforts to locate and secure the participation of the parent or guardian in educational or developmental services decisionmaking.
(C)The childs educational and developmental services needs cannot be met without the temporary appointment of a responsible adult.
(2)If the court limits the parents educational rights under this subdivision, the court shall determine whether there is a responsible adult who is a relative, nonrelative extended family member, or other adult known to the child and who is available and willing to serve as the childs educational representative before appointing an educational representative or surrogate who is not known to the child.
(3)If the court cannot identify a responsible adult to make educational decisions for the child and the appointment of a surrogate parent, as defined in subdivision (a) of Section 56050 of the Education Code, is not warranted, the court may, with the input of any interested person, make educational decisions for the child. If the child is receiving services from a regional center, the provision of any developmental services related to the courts decision shall be consistent with the childs individual program plan and pursuant to the Lanterman Developmental Disabilities Services Act (Division 4.5 (commencing with Section 4500)). If the court cannot identify a responsible adult to make developmental services decisions for the child, the court may, with the input of any interested person, make developmental services decisions for the child. If the court makes educational or developmental services decisions for the child, the court shall also issue appropriate orders to ensure that every effort is made to identify a responsible adult to make future educational or developmental services decisions for the child.
(4)A temporary appointment of a responsible adult and temporary limitation on the right of the parent or guardian to make educational or developmental services decisions for the child shall be specifically addressed in the court order. An order made under this section shall expire at the conclusion of the hearing held pursuant to Section 361 or upon dismissal of the petition. Upon the entering of disposition orders, additional needed limitation on the parents or guardians educational or developmental services rights shall be addressed pursuant to Section 361.
(5)This section does not remove the obligation to appoint surrogate parents for students with disabilities who are without parental representation in special education procedures, as required by state and federal law, including Section 1415(b)(2) of Title 20 of the United States Code, Section 56050 of the Education Code, Section 7579.5 of the Government Code, and Rule 5.650 of the California Rules of Court.
(6)If the court appoints a developmental services decisionmaker pursuant to this section, the developmental services decisionmaker shall have the authority to access the childs information and records pursuant to subdivision (u) of Section 4514 and paragraph (23) of subdivision (a) of Section 5328, and to act on the childs behalf for the purposes of the individual program plan process pursuant to Sections 4646, 4646.5, and 4648 and the fair hearing process pursuant to Chapter 7 (commencing with Section 4700) of Division 4.5, and as set forth in the court order.
(k)For a placement made on or after October 1, 2021, each temporary placement of the child pursuant to subdivision (h) in a short-term residential therapeutic program shall comply with the requirements of Section 4096 and be reviewed by the court pursuant to Section 361.22.
(l)For a placement made on or after July 1, 2022, each temporary placement of the child pursuant to subdivision (h) in a community treatment facility shall comply with the requirements of Section 4096 and be reviewed by the court pursuant to Section 361.22.
SEC. 1.3.Section 319 of the Welfare and Institutions Code is amended to read:319.(a)At the initial petition hearing, the court shall review the report described in subdivision (b) and examine the childs parents, guardians, Indian custodian, or other persons having relevant knowledge and hear the relevant evidence as the child, the childs parents or guardians, the childs Indian custodian, the petitioner, the Indian childs tribe, or their counsel desires to present. The court may examine the child, as provided in Section 350.
(b)The social worker shall report to the court on the reasons why the child has been removed from the parents, guardians, or Indian custodians physical custody; the need, if any, for continued detention; and the available services and the referral methods to those services that could facilitate the return of the child to the custody of the childs parents, guardians, or Indian custodian; and shall document their efforts, and in the case of an Indian child, the active efforts as defined in subdivision (f) of Section 224.1, and results of those efforts by the social worker to locate any relatives or kin who could provide family support or possible placement of the child or nonminor dependent and the names of those relatives or kin. The report shall also include information regarding any short-term or long-term harms, or both short-term and long-term harms, to the child that may result from their removal from the custody of their parent, guardian, or Indian custodian, including, but not limited to, the information specified in subparagraph (A) of paragraph (2) of subdivision (c), the placement options, including an assessment of the least disruptive alternatives to returning the child to the custody of their parent, guardian, or Indian custodian, including compliance with the placement preferences set forth in Section 361.31 in the case of an Indian child, and measures that may be available to alleviate disruption and minimize the harms of removal. If it is known or there is reason to know the child is an Indian child, the report shall also include all of the following:
(1)A statement of the risk of imminent physical damage or harm to the Indian child and any evidence that the emergency removal or placement continues to be necessary to prevent the imminent physical damage or harm to the child.
(2)The steps taken to provide notice to the childs parents, custodians, and tribe about the hearing pursuant to this section.
(3)If the childs parents and Indian custodians are unknown, a detailed explanation of what efforts have been made to locate and contact them, including contact with the appropriate Bureau of Indian Affairs regional director.
(4)The residence and the domicile of the Indian child.
(5)If either the residence or the domicile of the Indian child is believed to be on a reservation or in an Alaska Native village, the name of the tribe affiliated with that reservation or village.
(6)The tribal affiliation of the child and of the parents or Indian custodians.
(7)A specific and detailed account of the circumstances that caused the Indian child to be taken into temporary custody.
(8)If the child is believed to reside or be domiciled on a reservation in which the tribe exercises exclusive jurisdiction over child custody matters, a statement of efforts that have been made and that are being made to contact the tribe and transfer the child to the tribes jurisdiction.
(9)A statement of the efforts that have been taken to assist the parents or Indian custodians so the Indian child may safely be returned to their custody.
(10)The steps taken to consult and collaborate with the tribe and the outcome of that consultation and collaboration.
(c)(1)The court shall order the release of the child from custody unless a prima facie showing has been made that the child comes within Section 300, the court finds that continuance in the parents or guardians home is contrary to the childs welfare, and any of the following circumstances exist:
(A)There is a substantial danger to the physical health of the child or the child is suffering severe emotional damage, and there are no reasonable means by which the childs physical or emotional health may be protected without removing the child from the parents or guardians physical custody.
(B)There is substantial evidence that a parent, guardian, or custodian of the child is likely to flee the jurisdiction of the court, and, in the case of an Indian child, fleeing the jurisdiction will place the child at risk of imminent physical damage or harm.
(C)The child has left a placement in which the child was placed by the juvenile court.
(D)The child indicates an unwillingness to return home, if the child has been physically or sexually abused by a person residing in the home.
(2)(A)The court shall determine whether less disruptive alternatives to removal were considered by the agency, such as factors related to the impact of removal on the child, including, but not limited to, the following:
(i)A description of the relationship between the child and their parents, guardians, or Indian custodians, based on the childs perspective, and the childs response to removal and, where developmentally appropriate, their perspective on removal.
(ii)The relationship between the child and any siblings.
(iii)The relationship between the child and other members of the household.
(iv)Any disruption to the childs schooling, social relationships, and physical or emotional health that may result from placement out of the home, and in the case of an Indian child, any impact on the childs connection to their tribe, extended family members, and tribal community.
(B)If the court finds that removal is necessary under paragraph (1), the court shall, in a written order or on the record, set forth all of the following:
(i)The basis for its findings and the evidence relied on.
(ii)Its determination regarding the childs placement, including whether it complies with the placement preferences set forth in Section 361.31 and less disruptive alternatives.
(iii)Include any orders necessary to alleviate any disruption or harm to the child resulting from removal.
(C)Nothing in this paragraph permits a child to be released to a parent, legal guardian, or Indian custodian, or to be placed in an unsafe placement, due solely to the court determining the child was not offered less disruptive alternatives.
(d)If the court knows or there is reason to know the child is an Indian child, the court may only detain the Indian child if it also finds that detention is necessary to prevent imminent physical damage or harm. The court shall state on the record the facts supporting this finding.
(e)(1)If the hearing pursuant to this section is continued pursuant to Section 322 or for any other reason, the court shall find that the continuance of the child in the parents or guardians home is contrary to the childs welfare at the initial petition hearing or order the release of the child from custody.
(2)If the court knows or has reason to know the child is an Indian child, the hearing pursuant to this section may not be continued beyond 30 days unless the court finds all of the following:
(A)Restoring the child to the parent, parents, or Indian custodian would subject the child to imminent physical damage or harm.
(B)The court is unable to transfer the proceeding to the jurisdiction of the appropriate Indian tribe.
(C)It is not possible to initiate an Indian child custody proceeding as defined in Section 224.1.
(f)(1)The court shall also make a determination on the record, referencing the social workers report or other evidence relied upon, as to whether reasonable efforts were made to prevent or eliminate the need for removal of the child from their home, pursuant to subdivision (b) of Section 306, and whether there are available services that would prevent the need for further detention. Services to be considered for purposes of making this determination are case management, counseling, emergency shelter care, emergency in-home caretakers, out-of-home respite care, teaching and demonstrating homemakers, parenting training, transportation, and any other child welfare services authorized by the State Department of Social Services pursuant to Chapter 5 (commencing with Section 16500) of Part 4 of Division 9. The court shall also review whether the social worker has considered whether a referral to public assistance services pursuant to Chapter 2 (commencing with Section 11200) and Chapter 7 (commencing with Section 14000) of Part 3 of, Chapter 1 (commencing with Section 17000) of Part 5 of, and Chapter 10 (commencing with Section 18900) of Part 6 of, Division 9 would have eliminated the need to take temporary custody of the child or would prevent the need for further detention. This determination shall apply to each child individually, and the considerations shall be tailored to the individual child.
(2)If the court knows or has reason to know the child is an Indian child, the court shall also determine whether the county welfare department made active efforts to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian family. The court shall order the county welfare department to initiate or continue services or programs pending disposition pursuant to Section 358.
(3)If the child can be returned to the custody of their parent, guardian, or Indian custodian through the provision of those services, the court shall place the child with their parent, guardian, or Indian custodian and order that the services shall be provided. If the child cannot be returned to the physical custody of their parent or guardian, the court shall determine if there is a relative who is able and willing to care for the child, and has been assessed pursuant to Section 361.4.
(4)In order to preserve the bond between the child and the parent and to facilitate family reunification, the court shall consider whether the child can be returned to the custody of their parent who is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with their parent. The fact that the parent is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with their parent shall not be, for that reason alone, prima facie evidence of substantial danger. The court shall specify the factual basis for its conclusion that the return of the child to the custody of their parent would pose a substantial danger or would not pose a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child.
(g)If a court orders a child detained, the court shall state the facts on which the decision is based, specify why the initial removal was necessary, reference the social workers report or other evidence relied upon to make its determination whether continuance in the home of the parent or legal guardian is contrary to the childs welfare, order temporary placement and care of the child to be vested with the county child welfare department pending the hearing held pursuant to Section 355 or further order of the court, and order services to be provided as soon as possible to reunify the child and their family, if appropriate.
(h)(1)(A)If the child is not released from custody, the court may order the temporary placement of the child in any of the following for a period not to exceed 15 judicial days:
(i)The home of a relative, an extended family member, as defined in Section 224.1 and Section 1903 of the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.), or a nonrelative extended family member, as defined in Section 362.7, that has been assessed pursuant to Section 361.4.
(ii)The approved home of a resource family, as described in Section 16519.5, or a home licensed or approved by the Indian childs tribe.
(iii)An emergency shelter or other suitable licensed place.
(iv)A place exempt from licensure designated by the juvenile court.
(B)A youth homelessness prevention center licensed by the State Department of Social Services pursuant to Section 1502.35 of the Health and Safety Code shall not be a placement option pursuant to this section.
(C)If the court knows or has reason to know that the child is an Indian child, the Indian child shall be detained in a home that complies with the placement preferences set forth in Section 361.31 and in the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.), unless the court finds good cause exists pursuant to Section 361.31 not to follow the placement preferences. If the court finds good cause not to follow the placement preferences for detention, this finding does not affect the requirement that a diligent search be made for a subsequent placement within the placement preferences.
(2)Relatives shall be given preferential consideration for placement of the child. As used in this section, relative means an adult who is related to the child by blood, adoption, or affinity within the fifth degree of kinship, including stepparents, stepsiblings, and all relatives whose status is preceded by the words great, great-great, or grand, or the spouse of any of these persons, even if the marriage was terminated by death or dissolution.
(3)When placing in the home of a relative, an extended family member, as defined in Section 224.1 and Section 1903 of the federal Indian Child Welfare Act of 1978, or nonrelative extended family member, the court shall consider the recommendations of the social worker based on the assessment pursuant to Section 361.4 of the home of the relative, extended family member, or nonrelative extended family member, including the results of a criminal records check and prior child abuse allegations, if any, before ordering that the child be placed with a relative or nonrelative extended family member. The court may authorize the placement of a child on a temporary basis in the home of a relative, regardless of the status of any criminal record exemption or resource family approval, if the court finds that the placement does not pose a risk to the health and safety of the child. The court shall order the parent to disclose to the social worker the names, residences, and any known identifying information of any maternal or paternal relatives of the child. The social worker shall initiate the assessment pursuant to Section 361.3 of any relative to be considered for continuing placement.
(i)In the case of an Indian child, any order detaining the child pursuant to this section shall be considered an emergency removal within the meaning of Section 224.1 of this code, and as described in subdivision (g) of Section 305.5, and Section 1922 of the federal Indian Child Welfare Act of 1978. The emergency proceeding shall terminate if the child is returned to the custody of the parent, parents, or Indian custodian, the child has been transferred to the custody and jurisdiction of the childs tribe, or the agency or another party to the proceeding recommends that the child be removed from the physical custody of their parent or parents or Indian custodian pursuant to Section 361 or 361.2.
(j)(1)At the initial hearing upon the petition filed in accordance with subdivision (c) of Rule 5.520 of the California Rules of Court or anytime thereafter up until the time that the minor is adjudged a dependent child of the court or a finding is made dismissing the petition, the court may temporarily limit the right of the parent or guardian to make educational or developmental services decisions for the child and temporarily appoint a responsible adult to make educational or developmental services decisions for the child if all of the following conditions are found:
(A)The parent or guardian is unavailable, unable, or unwilling to exercise educational or developmental services rights for the child.
(B)The county placing agency has made diligent efforts to locate and secure the participation of the parent or guardian in educational or developmental services decisionmaking.
(C)The childs educational and developmental services needs cannot be met without the temporary appointment of a responsible adult.
(2)If the court limits the parents educational rights under this subdivision, the court shall determine whether there is a responsible adult who is a relative, nonrelative extended family member, or other adult known to the child and who is available and willing to serve as the childs educational representative before appointing an educational representative or surrogate who is not known to the child.
(3)If the court cannot identify a responsible adult to make educational decisions for the child and the appointment of a surrogate parent, as defined in subdivision (a) of Section 56050 of the Education Code, is not warranted, the court may, with the input of any interested person, make educational decisions for the child. If the child is receiving services from a regional center, the provision of any developmental services related to the courts decision shall be consistent with the childs individual program plan and pursuant to the Lanterman Developmental Disabilities Services Act (Division 4.5 (commencing with Section 4500)). If the court cannot identify a responsible adult to make developmental services decisions for the child, the court may, with the input of any interested person, make developmental services decisions for the child. If the court makes educational or developmental services decisions for the child, the court shall also issue appropriate orders to ensure that every effort is made to identify a responsible adult to make future educational or developmental services decisions for the child.
(4)A temporary appointment of a responsible adult and temporary limitation on the right of the parent or guardian to make educational or developmental services decisions for the child shall be specifically addressed in the court order. An order made under this section shall expire at the conclusion of the hearing held pursuant to Section 361 or upon dismissal of the petition. Upon the entering of disposition orders, additional needed limitation on the parents or guardians educational or developmental services rights shall be addressed pursuant to Section 361.
(5)This section does not remove the obligation to appoint surrogate parents for students with disabilities who are without parental representation in special education procedures, as required by state and federal law, including Section 1415(b)(2) of Title 20 of the United States Code, Section 56050 of the Education Code, Section 7579.5 of the Government Code, and Rule 5.650 of the California Rules of Court.
(6)If the court appoints a developmental services decisionmaker pursuant to this section, the developmental services decisionmaker shall have the authority to access the childs information and records pursuant to subdivision (u) of Section 4514 and paragraph (23) of subdivision (a) of Section 5328, and to act on the childs behalf for the purposes of the individual program plan process pursuant to Sections 4646, 4646.5, and 4648 and the fair hearing process pursuant to Chapter 7 (commencing with Section 4700) of Division 4.5, and as set forth in the court order.
(k)For a placement made on or after October 1, 2021, each temporary placement of the child pursuant to subdivision (h) in a short-term residential therapeutic program shall comply with the requirements of Section 4096 and be reviewed by the court pursuant to Section 361.22.
(l)For a placement made on or after July 1, 2022, each temporary placement of the child pursuant to subdivision (h) in a community treatment facility shall comply with the requirements of Section 4096 and be reviewed by the court pursuant to Section 361.22.
SEC. 2.(a)Section 1.1 of this bill incorporates amendments to Section 319 of the Welfare and Institutions Code proposed by this bill and Assembly Bill 81. That section of this bill shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2024, (2) each bill amends Section 319 of the Welfare and Institutions Code, (3) Assembly Bill 448 is not enacted or as enacted does not amend that section, and (4) this bill is enacted after Assembly Bill 81, in which case Section 319 of the Welfare and Institutions Code, as amended by Assembly Bill 81, shall remain operative only until the operative date of this bill, at which time Section 1.1 of this bill shall become operative, and Sections 1, 1.2, and 1.3 of this bill shall not become operative.
(b)Section 1.2 of this bill incorporates amendments to Section 319 of the Welfare and Institutions Code proposed by both this bill and Assembly Bill 448. That section of this bill shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2024, (2) each bill amends Section 319 of the Welfare and Institutions Code, (3) Assembly Bill 81 is not enacted or as enacted does not amend that section, and (4) this bill is enacted after Assembly Bill 448, in which case Sections 1, 1.1, and 1.3 of this bill shall not become operative.
(c)Section 1.3 of this bill incorporates amendments to Section 319 of the Welfare and Institutions Code proposed by this bill, Assembly Bill 81, and Assembly Bill 448. That section of this bill shall only become operative if (1) all three bills are enacted and become effective on or before January 1, 2024, (2) all three bills amend Section 319 of the Welfare and Institutions Code, and (3) this bill is enacted after Assembly Bill 81 and Assembly Bill 448, in which case Section 319 of the Welfare and Institutions Code, as amended by Assembly Bill 81, shall remain operative only until the operative date of this bill, at which time Section 1.3 of this bill shall become operative, and Sections 1, 1.1, and 1.2 of this bill shall not become operative.
SEC. 3.To the extent that this act has an overall effect of increasing the costs already borne by a local agency for programs or levels of service mandated by the 2011 Realignment Legislation within the meaning of Section 36 of Article XIII of the California Constitution, it shall apply to local agencies only to the extent that the state provides annual funding for the cost increase. Any new program or higher level of service provided by a local agency pursuant to this act above the level for which funding has been provided shall not require a subvention of funds by the state or otherwise be subject to Section 6 of Article XIIIB of the California Constitution.
(a)At the initial petition hearing, the court shall review the report described in subdivision (b) and examine the childs parents, guardians, Indian custodian, or other persons having relevant knowledge and hear the relevant evidence as the child, the childs parents or guardians, the childs Indian custodian, the petitioner, the Indian childs tribe, or their counsel desires to present. The court may examine the child, as provided in Section 350.
(b)The social worker shall report to the court on the reasons why the child has been removed from the parents, guardians, or Indian custodians physical custody, the need, if any, for continued detention, the available services and the referral methods to those services that could facilitate the return of the child to the custody of the childs parents, guardians, or Indian custodian, and whether there are any relatives who are able and willing to take temporary physical custody of the child. The report shall also include information regarding any short-term or long-term harms, or both short-term and long-term harms, to the child that may result from their removal from the custody of their parent, guardian, or Indian custodian, including, but not limited to, the information specified in subparagraph (A) of paragraph (2) of subdivision (c), the placement options, including an assessment of the least disruptive alternatives to returning the child to the custody of their parent, guardian, or Indian custodian, including compliance with the placement preferences set forth in Section 361.31 in the case of an Indian child, and measures that may be available to alleviate disruption and minimize the harms of removal. If it is known or there is reason to know the child is an Indian child, the report shall also include all of the following:
(1)A statement of the risk of imminent physical damage or harm to the Indian child and any evidence that the emergency removal or placement continues to be necessary to prevent the imminent physical damage or harm to the child.
(2)The steps taken to provide notice to the childs parents, custodians, and tribe about the hearing pursuant to this section.
(3)If the childs parents and Indian custodians are unknown, a detailed explanation of what efforts have been made to locate and contact them, including contact with the appropriate Bureau of Indian Affairs regional director.
(4)The residence and the domicile of the Indian child.
(5)If either the residence or the domicile of the Indian child is believed to be on a reservation or in an Alaska Native village, the name of the tribe affiliated with that reservation or village.
(6)The tribal affiliation of the child and of the parents or Indian custodians.
(7)A specific and detailed account of the circumstances that caused the Indian child to be taken into temporary custody.
(8)If the child is believed to reside or be domiciled on a reservation in which the tribe exercises exclusive jurisdiction over child custody matters, a statement of efforts that have been made and that are being made to contact the tribe and transfer the child to the tribes jurisdiction.
(9)A statement of the efforts that have been taken to assist the parents or Indian custodians so the Indian child may safely be returned to their custody.
(10)The steps taken to consult and collaborate with the tribe and the outcome of that consultation and collaboration.
(c)(1)The court shall order the release of the child from custody unless a prima facie showing has been made that the child comes within Section 300, the court finds that continuance in the parents or guardians home is contrary to the childs welfare, and any of the following circumstances exist:
(A)There is a substantial danger to the physical health of the child or the child is suffering severe emotional damage, and there are no reasonable means by which the childs physical or emotional health may be protected without removing the child from the parents or guardians physical custody.
(B)There is substantial evidence that a parent, guardian, or custodian of the child is likely to flee the jurisdiction of the court, and, in the case of an Indian child, fleeing the jurisdiction will place the child at risk of imminent physical damage or harm.
(C)The child has left a placement in which the child was placed by the juvenile court.
(D)The child indicates an unwillingness to return home, if the child has been physically or sexually abused by a person residing in the home.
(2)(A)The court shall determine whether less disruptive alternatives to removal were considered by the agency, such as factors related to the impact of removal on the child, including, but not limited to, the following:
(i)A description of the relationship between the child and their parents, guardians, or Indian custodians, based on the childs perspective, and the childs response to removal and, where developmentally appropriate, their perspective on removal.
(ii)The relationship between the child and any siblings.
(iii)The relationship between the child and other members of the household.
(iv)Any disruption to the childs schooling, social relationships, and physical or emotional health that may result from placement out of the home, and in the case of an Indian child, any impact on the childs connection to their tribe, extended family members, and tribal community.
(B)If the court finds that removal is necessary under paragraph (1), the court shall, in a written order or on the record, set forth all of the following:
(i)The basis for its findings and the evidence relied on.
(ii)Its determination regarding the childs placement, including whether it complies with the placement preferences set forth in Section 361.31 and less disruptive alternatives.
(iii)Include any orders necessary to alleviate any disruption or harm to the child resulting from removal.
(C)Nothing in this paragraph permits a child to be released to a parent, legal guardian, or Indian custodian, or to be placed in an unsafe placement, due solely to the court determining the child was not offered less disruptive alternatives.
(d)If the court knows or there is reason to know the child is an Indian child, the court may only detain the Indian child if it also finds that detention is necessary to prevent imminent physical damage or harm. The court shall state on the record the facts supporting this finding.
(e)(1)If the hearing pursuant to this section is continued pursuant to Section 322 or for any other reason, the court shall find that the continuance of the child in the parents or guardians home is contrary to the childs welfare at the initial petition hearing or order the release of the child from custody.
(2)If the court knows or has reason to know the child is an Indian child, the hearing pursuant to this section may not be continued beyond 30 days unless the court finds all of the following:
(A)Restoring the child to the parent, parents, or Indian custodian would subject the child to imminent physical damage or harm.
(B)The court is unable to transfer the proceeding to the jurisdiction of the appropriate Indian tribe.
(C)It is not possible to initiate an Indian child custody proceeding as defined in Section 224.1.
(f)(1)The court shall also make a determination on the record, referencing the social workers report or other evidence relied upon, as to whether reasonable efforts were made to prevent or eliminate the need for removal of the child from their home, pursuant to subdivision (b) of Section 306, and whether there are available services that would prevent the need for further detention. Services to be considered for purposes of making this determination are case management, counseling, emergency shelter care, emergency in-home caretakers, out-of-home respite care, teaching and demonstrating homemakers, parenting training, transportation, and any other child welfare services authorized by the State Department of Social Services pursuant to Chapter 5 (commencing with Section 16500) of Part 4 of Division 9. The court shall also review whether the social worker has considered whether a referral to public assistance services pursuant to Chapter 2 (commencing with Section 11200) and Chapter 7 (commencing with Section 14000) of Part 3 of, Chapter 1 (commencing with Section 17000) of Part 5 of, and Chapter 10 (commencing with Section 18900) of Part 6 of, Division 9 would have eliminated the need to take temporary custody of the child or would prevent the need for further detention. This determination shall apply to each child individually, and the considerations shall be tailored to the individual child.
(2)If the court knows or has reason to know the child is an Indian child, the court shall also determine whether the county welfare department made active efforts to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian family. The court shall order the county welfare department to initiate or continue services or programs pending disposition pursuant to Section 358.
(3)If the child can be returned to the custody of their parent, guardian, or Indian custodian through the provision of those services, the court shall place the child with their parent, guardian, or Indian custodian and order that the services shall be provided. If the child cannot be returned to the physical custody of their parent or guardian, the court shall determine if there is a relative who is able and willing to care for the child, and has been assessed pursuant to Section 361.4.
(4)In order to preserve the bond between the child and the parent and to facilitate family reunification, the court shall consider whether the child can be returned to the custody of their parent who is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with their parent. The fact that the parent is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with their parent shall not be, for that reason alone, prima facie evidence of substantial danger. The court shall specify the factual basis for its conclusion that the return of the child to the custody of their parent would pose a substantial danger or would not pose a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child.
(g)If a court orders a child detained, the court shall state the facts on which the decision is based, specify why the initial removal was necessary, reference the social workers report or other evidence relied upon to make its determination whether continuance in the home of the parent or legal guardian is contrary to the childs welfare, order temporary placement and care of the child to be vested with the county child welfare department pending the hearing held pursuant to Section 355 or further order of the court, and order services to be provided as soon as possible to reunify the child and their family, if appropriate.
(h)(1)(A)If the child is not released from custody, the court may order the temporary placement of the child in any of the following for a period not to exceed 15 judicial days:
(i)The home of a relative, an extended family member, as defined in Section 224.1 and Section 1903 of the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.), or a nonrelative extended family member, as defined in Section 362.7, that has been assessed pursuant to Section 361.4.
(ii)The approved home of a resource family, as described in Section 16519.5, or a home licensed or approved by the Indian childs tribe.
(iii)An emergency shelter or other suitable licensed place.
(iv)A place exempt from licensure designated by the juvenile court.
(B)A youth homelessness prevention center licensed by the State Department of Social Services pursuant to Section 1502.35 of the Health and Safety Code shall not be a placement option pursuant to this section.
(C)If the court knows or has reason to know that the child is an Indian child, the Indian child shall be detained in a home that complies with the placement preferences set forth in Section 361.31 and in the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.), unless the court finds good cause exists pursuant to Section 361.31 not to follow the placement preferences. If the court finds good cause not to follow the placement preferences for detention, this finding does not affect the requirement that a diligent search be made for a subsequent placement within the placement preferences.
(2)Relatives shall be given preferential consideration for placement of the child. As used in this section, relative means an adult who is related to the child by blood, adoption, or affinity within the fifth degree of kinship, including stepparents, stepsiblings, and all relatives whose status is preceded by the words great, great-great, or grand, or the spouse of any of these persons, even if the marriage was terminated by death or dissolution.
(3)When placing in the home of a relative, an extended family member, as defined in Section 224.1 and Section 1903 of the federal Indian Child Welfare Act of 1978, or nonrelative extended family member, the court shall consider the recommendations of the social worker based on the assessment pursuant to Section 361.4 of the home of the relative, extended family member, or nonrelative extended family member, including the results of a criminal records check and prior child abuse allegations, if any, before ordering that the child be placed with a relative or nonrelative extended family member. The court may authorize the placement of a child on a temporary basis in the home of a relative, regardless of the status of any criminal record exemption or resource family approval, if the court finds that the placement does not pose a risk to the health and safety of the child. The court shall order the parent to disclose to the social worker the names, residences, and any known identifying information of any maternal or paternal relatives of the child. The social worker shall initiate the assessment pursuant to Section 361.3 of any relative to be considered for continuing placement.
(i)In the case of an Indian child, any order detaining the child pursuant to this section shall be considered an emergency removal within the meaning of Section 1922 of the federal Indian Child Welfare Act of 1978. The emergency proceeding shall terminate if the child is returned to the custody of the parent, parents, or Indian custodian, the child has been transferred to the custody and jurisdiction of the childs tribe, or the agency or another party to the proceeding recommends that the child be removed from the physical custody of their parent or parents or Indian custodian pursuant to Section 361 or 361.2.
(j)(1)At the initial hearing upon the petition filed in accordance with subdivision (c) of Rule 5.520 of the California Rules of Court or anytime thereafter up until the time that the minor is adjudged a dependent child of the court or a finding is made dismissing the petition, the court may temporarily limit the right of the parent or guardian to make educational or developmental services decisions for the child and temporarily appoint a responsible adult to make educational or developmental services decisions for the child if all of the following conditions are found:
(A)The parent or guardian is unavailable, unable, or unwilling to exercise educational or developmental services rights for the child.
(B)The county placing agency has made diligent efforts to locate and secure the participation of the parent or guardian in educational or developmental services decisionmaking.
(C)The childs educational and developmental services needs cannot be met without the temporary appointment of a responsible adult.
(2)If the court limits the parents educational rights under this subdivision, the court shall determine whether there is a responsible adult who is a relative, nonrelative extended family member, or other adult known to the child and who is available and willing to serve as the childs educational representative before appointing an educational representative or surrogate who is not known to the child.
(3)If the court cannot identify a responsible adult to make educational decisions for the child and the appointment of a surrogate parent, as defined in subdivision (a) of Section 56050 of the Education Code, is not warranted, the court may, with the input of any interested person, make educational decisions for the child. If the child is receiving services from a regional center, the provision of any developmental services related to the courts decision shall be consistent with the childs individual program plan and pursuant to the Lanterman Developmental Disabilities Services Act (Division 4.5 (commencing with Section 4500)). If the court cannot identify a responsible adult to make developmental services decisions for the child, the court may, with the input of any interested person, make developmental services decisions for the child. If the court makes educational or developmental services decisions for the child, the court shall also issue appropriate orders to ensure that every effort is made to identify a responsible adult to make future educational or developmental services decisions for the child.
(4)A temporary appointment of a responsible adult and temporary limitation on the right of the parent or guardian to make educational or developmental services decisions for the child shall be specifically addressed in the court order. An order made under this section shall expire at the conclusion of the hearing held pursuant to Section 361 or upon dismissal of the petition. Upon the entering of disposition orders, additional needed limitation on the parents or guardians educational or developmental services rights shall be addressed pursuant to Section 361.
(5)This section does not remove the obligation to appoint surrogate parents for students with disabilities who are without parental representation in special education procedures, as required by state and federal law, including Section 1415(b)(2) of Title 20 of the United States Code, Section 56050 of the Education Code, Section 7579.5 of the Government Code, and Rule 5.650 of the California Rules of Court.
(6)If the court appoints a developmental services decisionmaker pursuant to this section, the developmental services decisionmaker shall have the authority to access the childs information and records pursuant to subdivision (u) of Section 4514 and paragraph (23) of subdivision (a) of Section 5328, and to act on the childs behalf for the purposes of the individual program plan process pursuant to Sections 4646, 4646.5, and 4648 and the fair hearing process pursuant to Chapter 7 (commencing with Section 4700) of Division 4.5, and as set forth in the court order.
(k)For a placement made on or after October 1, 2021, each temporary placement of the child pursuant to subdivision (h) in a short-term residential therapeutic program shall comply with the requirements of Section 4096 and be reviewed by the court pursuant to Section 361.22.
(l)For a placement made on or after July 1, 2022, each temporary placement of the child pursuant to subdivision (h) in a community treatment facility shall comply with the requirements of Section 4096 and be reviewed by the court pursuant to Section 361.22.
SEC. 1.1.Section 319 of the Welfare and Institutions Code is amended to read:319.(a)At the initial petition hearing, the court shall review the report described in subdivision (b) and examine the childs parents, guardians, Indian custodian, or other persons having relevant knowledge and hear the relevant evidence as the child, the childs parents or guardians, the childs Indian custodian, the petitioner, the Indian childs tribe, or their counsel desires to present. The court may examine the child, as provided in Section 350.
(b)The social worker shall report to the court on the reasons why the child has been removed from the parents, guardians, or Indian custodians physical custody, the need, if any, for continued detention, the available services and the referral methods to those services that could facilitate the return of the child to the custody of the childs parents, guardians, or Indian custodian, and whether there are any relatives who are able and willing to take temporary physical custody of the child. The report shall also include information regarding any short-term or long-term harms, or both short-term and long-term harms, to the child that may result from their removal from the custody of their parent, guardian, or Indian custodian, including, but not limited to, the information specified in subparagraph (A) of paragraph (2) of subdivision (c), the placement options, including an assessment of the least disruptive alternatives to returning the child to the custody of their parent, guardian, or Indian custodian, including compliance with the placement preferences set forth in Section 361.31 in the case of an Indian child, and measures that may be available to alleviate disruption and minimize the harms of removal. If it is known or there is reason to know the child is an Indian child, the report shall also include all of the following:
(1)A statement of the risk of imminent physical damage or harm to the Indian child and any evidence that the emergency removal or placement continues to be necessary to prevent the imminent physical damage or harm to the child.
(2)The steps taken to provide notice to the childs parents, custodians, and tribe about the hearing pursuant to this section.
(3)If the childs parents and Indian custodians are unknown, a detailed explanation of what efforts have been made to locate and contact them, including contact with the appropriate Bureau of Indian Affairs regional director.
(4)The residence and the domicile of the Indian child.
(5)If either the residence or the domicile of the Indian child is believed to be on a reservation or in an Alaska Native village, the name of the tribe affiliated with that reservation or village.
(6)The tribal affiliation of the child and of the parents or Indian custodians.
(7)A specific and detailed account of the circumstances that caused the Indian child to be taken into temporary custody.
(8)If the child is believed to reside or be domiciled on a reservation in which the tribe exercises exclusive jurisdiction over child custody matters, a statement of efforts that have been made and that are being made to contact the tribe and transfer the child to the tribes jurisdiction.
(9)A statement of the efforts that have been taken to assist the parents or Indian custodians so the Indian child may safely be returned to their custody.
(10)The steps taken to consult and collaborate with the tribe and the outcome of that consultation and collaboration.
(c)(1)The court shall order the release of the child from custody unless a prima facie showing has been made that the child comes within Section 300, the court finds that continuance in the parents or guardians home is contrary to the childs welfare, and any of the following circumstances exist:
(A)There is a substantial danger to the physical health of the child or the child is suffering severe emotional damage, and there are no reasonable means by which the childs physical or emotional health may be protected without removing the child from the parents or guardians physical custody.
(B)There is substantial evidence that a parent, guardian, or custodian of the child is likely to flee the jurisdiction of the court, and, in the case of an Indian child, fleeing the jurisdiction will place the child at risk of imminent physical damage or harm.
(C)The child has left a placement in which the child was placed by the juvenile court.
(D)The child indicates an unwillingness to return home, if the child has been physically or sexually abused by a person residing in the home.
(2)(A)The court shall determine whether less disruptive alternatives to removal were considered by the agency, such as factors related to the impact of removal on the child, including, but not limited to, the following:
(i)A description of the relationship between the child and their parents, guardians, or Indian custodians, based on the childs perspective, and the childs response to removal and, where developmentally appropriate, their perspective on removal.
(ii)The relationship between the child and any siblings.
(iii)The relationship between the child and other members of the household.
(iv)Any disruption to the childs schooling, social relationships, and physical or emotional health that may result from placement out of the home, and in the case of an Indian child, any impact on the childs connection to their tribe, extended family members, and tribal community.
(B)If the court finds that removal is necessary under paragraph (1), the court shall, in a written order or on the record, set forth all of the following:
(i)The basis for its findings and the evidence relied on.
(ii)Its determination regarding the childs placement, including whether it complies with the placement preferences set forth in Section 361.31 and less disruptive alternatives.
(iii)Include any orders necessary to alleviate any disruption or harm to the child resulting from removal.
(C)Nothing in this paragraph permits a child to be released to a parent, legal guardian, or Indian custodian, or to be placed in an unsafe placement, due solely to the court determining the child was not offered less disruptive alternatives.
(d)If the court knows or there is reason to know the child is an Indian child, the court may only detain the Indian child if it also finds that detention is necessary to prevent imminent physical damage or harm. The court shall state on the record the facts supporting this finding.
(e)(1)If the hearing pursuant to this section is continued pursuant to Section 322 or for any other reason, the court shall find that the continuance of the child in the parents or guardians home is contrary to the childs welfare at the initial petition hearing or order the release of the child from custody.
(2)If the court knows or has reason to know the child is an Indian child, the hearing pursuant to this section may not be continued beyond 30 days unless the court finds all of the following:
(A)Restoring the child to the parent, parents, or Indian custodian would subject the child to imminent physical damage or harm.
(B)The court is unable to transfer the proceeding to the jurisdiction of the appropriate Indian tribe.
(C)It is not possible to initiate an Indian child custody proceeding as defined in Section 224.1.
(f)(1)The court shall also make a determination on the record, referencing the social workers report or other evidence relied upon, as to whether reasonable efforts were made to prevent or eliminate the need for removal of the child from their home, pursuant to subdivision (b) of Section 306, and whether there are available services that would prevent the need for further detention. Services to be considered for purposes of making this determination are case management, counseling, emergency shelter care, emergency in-home caretakers, out-of-home respite care, teaching and demonstrating homemakers, parenting training, transportation, and any other child welfare services authorized by the State Department of Social Services pursuant to Chapter 5 (commencing with Section 16500) of Part 4 of Division 9. The court shall also review whether the social worker has considered whether a referral to public assistance services pursuant to Chapter 2 (commencing with Section 11200) and Chapter 7 (commencing with Section 14000) of Part 3 of, Chapter 1 (commencing with Section 17000) of Part 5 of, and Chapter 10 (commencing with Section 18900) of Part 6 of, Division 9 would have eliminated the need to take temporary custody of the child or would prevent the need for further detention. This determination shall apply to each child individually, and the considerations shall be tailored to the individual child.
(2)If the court knows or has reason to know the child is an Indian child, the court shall also determine whether the county welfare department made active efforts to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian family. The court shall order the county welfare department to initiate or continue services or programs pending disposition pursuant to Section 358.
(3)If the child can be returned to the custody of their parent, guardian, or Indian custodian through the provision of those services, the court shall place the child with their parent, guardian, or Indian custodian and order that the services shall be provided. If the child cannot be returned to the physical custody of their parent or guardian, the court shall determine if there is a relative who is able and willing to care for the child, and has been assessed pursuant to Section 361.4.
(4)In order to preserve the bond between the child and the parent and to facilitate family reunification, the court shall consider whether the child can be returned to the custody of their parent who is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with their parent. The fact that the parent is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with their parent shall not be, for that reason alone, prima facie evidence of substantial danger. The court shall specify the factual basis for its conclusion that the return of the child to the custody of their parent would pose a substantial danger or would not pose a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child.
(g)If a court orders a child detained, the court shall state the facts on which the decision is based, specify why the initial removal was necessary, reference the social workers report or other evidence relied upon to make its determination whether continuance in the home of the parent or legal guardian is contrary to the childs welfare, order temporary placement and care of the child to be vested with the county child welfare department pending the hearing held pursuant to Section 355 or further order of the court, and order services to be provided as soon as possible to reunify the child and their family, if appropriate.
(h)(1)(A)If the child is not released from custody, the court may order the temporary placement of the child in any of the following for a period not to exceed 15 judicial days:
(i)The home of a relative, an extended family member, as defined in Section 224.1 and Section 1903 of the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.), or a nonrelative extended family member, as defined in Section 362.7, that has been assessed pursuant to Section 361.4.
(ii)The approved home of a resource family, as described in Section 16519.5, or a home licensed or approved by the Indian childs tribe.
(iii)An emergency shelter or other suitable licensed place.
(iv)A place exempt from licensure designated by the juvenile court.
(B)A youth homelessness prevention center licensed by the State Department of Social Services pursuant to Section 1502.35 of the Health and Safety Code shall not be a placement option pursuant to this section.
(C)If the court knows or has reason to know that the child is an Indian child, the Indian child shall be detained in a home that complies with the placement preferences set forth in Section 361.31 and in the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.), unless the court finds good cause exists pursuant to Section 361.31 not to follow the placement preferences. If the court finds good cause not to follow the placement preferences for detention, this finding does not affect the requirement that a diligent search be made for a subsequent placement within the placement preferences.
(2)Relatives shall be given preferential consideration for placement of the child. As used in this section, relative means an adult who is related to the child by blood, adoption, or affinity within the fifth degree of kinship, including stepparents, stepsiblings, and all relatives whose status is preceded by the words great, great-great, or grand, or the spouse of any of these persons, even if the marriage was terminated by death or dissolution.
(3)When placing in the home of a relative, an extended family member, as defined in Section 224.1 and Section 1903 of the federal Indian Child Welfare Act of 1978, or nonrelative extended family member, the court shall consider the recommendations of the social worker based on the assessment pursuant to Section 361.4 of the home of the relative, extended family member, or nonrelative extended family member, including the results of a criminal records check and prior child abuse allegations, if any, before ordering that the child be placed with a relative or nonrelative extended family member. The court may authorize the placement of a child on a temporary basis in the home of a relative, regardless of the status of any criminal record exemption or resource family approval, if the court finds that the placement does not pose a risk to the health and safety of the child. The court shall order the parent to disclose to the social worker the names, residences, and any known identifying information of any maternal or paternal relatives of the child. The social worker shall initiate the assessment pursuant to Section 361.3 of any relative to be considered for continuing placement.
(i)In the case of an Indian child, any order detaining the child pursuant to this section shall be considered an emergency removal within the meaning of Section 224.1 of this code, and as described in subdivision (g) of Section 305.5, and Section 1922 of the federal Indian Child Welfare Act of 1978. The emergency proceeding shall terminate if the child is returned to the custody of the parent, parents, or Indian custodian, the child has been transferred to the custody and jurisdiction of the childs tribe, or the agency or another party to the proceeding recommends that the child be removed from the physical custody of their parent or parents or Indian custodian pursuant to Section 361 or 361.2.
(j)(1)At the initial hearing upon the petition filed in accordance with subdivision (c) of Rule 5.520 of the California Rules of Court or anytime thereafter up until the time that the minor is adjudged a dependent child of the court or a finding is made dismissing the petition, the court may temporarily limit the right of the parent or guardian to make educational or developmental services decisions for the child and temporarily appoint a responsible adult to make educational or developmental services decisions for the child if all of the following conditions are found:
(A)The parent or guardian is unavailable, unable, or unwilling to exercise educational or developmental services rights for the child.
(B)The county placing agency has made diligent efforts to locate and secure the participation of the parent or guardian in educational or developmental services decisionmaking.
(C)The childs educational and developmental services needs cannot be met without the temporary appointment of a responsible adult.
(2)If the court limits the parents educational rights under this subdivision, the court shall determine whether there is a responsible adult who is a relative, nonrelative extended family member, or other adult known to the child and who is available and willing to serve as the childs educational representative before appointing an educational representative or surrogate who is not known to the child.
(3)If the court cannot identify a responsible adult to make educational decisions for the child and the appointment of a surrogate parent, as defined in subdivision (a) of Section 56050 of the Education Code, is not warranted, the court may, with the input of any interested person, make educational decisions for the child. If the child is receiving services from a regional center, the provision of any developmental services related to the courts decision shall be consistent with the childs individual program plan and pursuant to the Lanterman Developmental Disabilities Services Act (Division 4.5 (commencing with Section 4500)). If the court cannot identify a responsible adult to make developmental services decisions for the child, the court may, with the input of any interested person, make developmental services decisions for the child. If the court makes educational or developmental services decisions for the child, the court shall also issue appropriate orders to ensure that every effort is made to identify a responsible adult to make future educational or developmental services decisions for the child.
(4)A temporary appointment of a responsible adult and temporary limitation on the right of the parent or guardian to make educational or developmental services decisions for the child shall be specifically addressed in the court order. An order made under this section shall expire at the conclusion of the hearing held pursuant to Section 361 or upon dismissal of the petition. Upon the entering of disposition orders, additional needed limitation on the parents or guardians educational or developmental services rights shall be addressed pursuant to Section 361.
(5)This section does not remove the obligation to appoint surrogate parents for students with disabilities who are without parental representation in special education procedures, as required by state and federal law, including Section 1415(b)(2) of Title 20 of the United States Code, Section 56050 of the Education Code, Section 7579.5 of the Government Code, and Rule 5.650 of the California Rules of Court.
(6)If the court appoints a developmental services decisionmaker pursuant to this section, the developmental services decisionmaker shall have the authority to access the childs information and records pursuant to subdivision (u) of Section 4514 and paragraph (23) of subdivision (a) of Section 5328, and to act on the childs behalf for the purposes of the individual program plan process pursuant to Sections 4646, 4646.5, and 4648 and the fair hearing process pursuant to Chapter 7 (commencing with Section 4700) of Division 4.5, and as set forth in the court order.
(k)For a placement made on or after October 1, 2021, each temporary placement of the child pursuant to subdivision (h) in a short-term residential therapeutic program shall comply with the requirements of Section 4096 and be reviewed by the court pursuant to Section 361.22.
(l)For a placement made on or after July 1, 2022, each temporary placement of the child pursuant to subdivision (h) in a community treatment facility shall comply with the requirements of Section 4096 and be reviewed by the court pursuant to Section 361.22.
SEC. 1.2.Section 319 of the Welfare and Institutions Code is amended to read:319.(a)At the initial petition hearing, the court shall review the report described in subdivision (b) and examine the childs parents, guardians, Indian custodian, or other persons having relevant knowledge and hear the relevant evidence as the child, the childs parents or guardians, the childs Indian custodian, the petitioner, the Indian childs tribe, or their counsel desires to present. The court may examine the child, as provided in Section 350.
(b)The social worker shall report to the court on the reasons why the child has been removed from the parents, guardians, or Indian custodians physical custody; the need, if any, for continued detention; and the available services and the referral methods to those services that could facilitate the return of the child to the custody of the childs parents, guardians, or Indian custodian; and shall document their efforts, and in the case of an Indian child, the active efforts as defined in subdivision (f) of Section 224.1, and results of those efforts by the social worker to locate any relatives or kin who could provide family support or possible placement of the child or nonminor dependent and the names of those relatives or kin. The report shall also include information regarding any short-term or long-term harms, or both short-term and long-term harms, to the child that may result from their removal from the custody of their parent, guardian, or Indian custodian, including, but not limited to, the information specified in subparagraph (A) of paragraph (2) of subdivision (c), the placement options, including an assessment of the least disruptive alternatives to returning the child to the custody of their parent, guardian, or Indian custodian, including compliance with the placement preferences set forth in Section 361.31 in the case of an Indian child, and measures that may be available to alleviate disruption and minimize the harms of removal. If it is known or there is reason to know the child is an Indian child, the report shall also include all of the following:
(1)A statement of the risk of imminent physical damage or harm to the Indian child and any evidence that the emergency removal or placement continues to be necessary to prevent the imminent physical damage or harm to the child.
(2)The steps taken to provide notice to the childs parents, custodians, and tribe about the hearing pursuant to this section.
(3)If the childs parents and Indian custodians are unknown, a detailed explanation of what efforts have been made to locate and contact them, including contact with the appropriate Bureau of Indian Affairs regional director.
(4)The residence and the domicile of the Indian child.
(5)If either the residence or the domicile of the Indian child is believed to be on a reservation or in an Alaska Native village, the name of the tribe affiliated with that reservation or village.
(6)The tribal affiliation of the child and of the parents or Indian custodians.
(7)A specific and detailed account of the circumstances that caused the Indian child to be taken into temporary custody.
(8)If the child is believed to reside or be domiciled on a reservation in which the tribe exercises exclusive jurisdiction over child custody matters, a statement of efforts that have been made and that are being made to contact the tribe and transfer the child to the tribes jurisdiction.
(9)A statement of the efforts that have been taken to assist the parents or Indian custodians so the Indian child may safely be returned to their custody.
(10)The steps taken to consult and collaborate with the tribe and the outcome of that consultation and collaboration.
(c)(1)The court shall order the release of the child from custody unless a prima facie showing has been made that the child comes within Section 300, the court finds that continuance in the parents or guardians home is contrary to the childs welfare, and any of the following circumstances exist:
(A)There is a substantial danger to the physical health of the child or the child is suffering severe emotional damage, and there are no reasonable means by which the childs physical or emotional health may be protected without removing the child from the parents or guardians physical custody.
(B)There is substantial evidence that a parent, guardian, or custodian of the child is likely to flee the jurisdiction of the court, and, in the case of an Indian child, fleeing the jurisdiction will place the child at risk of imminent physical damage or harm.
(C)The child has left a placement in which the child was placed by the juvenile court.
(D)The child indicates an unwillingness to return home, if the child has been physically or sexually abused by a person residing in the home.
(2)(A)The court shall determine whether less disruptive alternatives to removal were considered by the agency, such as factors related to the impact of removal on the child, including, but not limited to, the following:
(i)A description of the relationship between the child and their parents, guardians, or Indian custodians, based on the childs perspective, and the childs response to removal and, where developmentally appropriate, their perspective on removal.
(ii)The relationship between the child and any siblings.
(iii)The relationship between the child and other members of the household.
(iv)Any disruption to the childs schooling, social relationships, and physical or emotional health that may result from placement out of the home, and in the case of an Indian child, any impact on the childs connection to their tribe, extended family members, and tribal community.
(B)If the court finds that removal is necessary under paragraph (1), the court shall, in a written order or on the record, set forth all of the following:
(i)The basis for its findings and the evidence relied on.
(ii)Its determination regarding the childs placement, including whether it complies with the placement preferences set forth in Section 361.31 and less disruptive alternatives.
(iii)Include any orders necessary to alleviate any disruption or harm to the child resulting from removal.
(C)Nothing in this paragraph permits a child to be released to a parent, legal guardian, or Indian custodian, or to be placed in an unsafe placement, due solely to the court determining the child was not offered less disruptive alternatives.
(d)If the court knows or there is reason to know the child is an Indian child, the court may only detain the Indian child if it also finds that detention is necessary to prevent imminent physical damage or harm. The court shall state on the record the facts supporting this finding.
(e)(1)If the hearing pursuant to this section is continued pursuant to Section 322 or for any other reason, the court shall find that the continuance of the child in the parents or guardians home is contrary to the childs welfare at the initial petition hearing or order the release of the child from custody.
(2)If the court knows or has reason to know the child is an Indian child, the hearing pursuant to this section may not be continued beyond 30 days unless the court finds all of the following:
(A)Restoring the child to the parent, parents, or Indian custodian would subject the child to imminent physical damage or harm.
(B)The court is unable to transfer the proceeding to the jurisdiction of the appropriate Indian tribe.
(C)It is not possible to initiate an Indian child custody proceeding as defined in Section 224.1.
(f)(1)The court shall also make a determination on the record, referencing the social workers report or other evidence relied upon, as to whether reasonable efforts were made to prevent or eliminate the need for removal of the child from their home, pursuant to subdivision (b) of Section 306, and whether there are available services that would prevent the need for further detention. Services to be considered for purposes of making this determination are case management, counseling, emergency shelter care, emergency in-home caretakers, out-of-home respite care, teaching and demonstrating homemakers, parenting training, transportation, and any other child welfare services authorized by the State Department of Social Services pursuant to Chapter 5 (commencing with Section 16500) of Part 4 of Division 9. The court shall also review whether the social worker has considered whether a referral to public assistance services pursuant to Chapter 2 (commencing with Section 11200) and Chapter 7 (commencing with Section 14000) of Part 3 of, Chapter 1 (commencing with Section 17000) of Part 5 of, and Chapter 10 (commencing with Section 18900) of Part 6 of, Division 9 would have eliminated the need to take temporary custody of the child or would prevent the need for further detention. This determination shall apply to each child individually, and the considerations shall be tailored to the individual child.
(2)If the court knows or has reason to know the child is an Indian child, the court shall also determine whether the county welfare department made active efforts to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian family. The court shall order the county welfare department to initiate or continue services or programs pending disposition pursuant to Section 358.
(3)If the child can be returned to the custody of their parent, guardian, or Indian custodian through the provision of those services, the court shall place the child with their parent, guardian, or Indian custodian and order that the services shall be provided. If the child cannot be returned to the physical custody of their parent or guardian, the court shall determine if there is a relative who is able and willing to care for the child, and has been assessed pursuant to Section 361.4.
(4)In order to preserve the bond between the child and the parent and to facilitate family reunification, the court shall consider whether the child can be returned to the custody of their parent who is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with their parent. The fact that the parent is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with their parent shall not be, for that reason alone, prima facie evidence of substantial danger. The court shall specify the factual basis for its conclusion that the return of the child to the custody of their parent would pose a substantial danger or would not pose a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child.
(g)If a court orders a child detained, the court shall state the facts on which the decision is based, specify why the initial removal was necessary, reference the social workers report or other evidence relied upon to make its determination whether continuance in the home of the parent or legal guardian is contrary to the childs welfare, order temporary placement and care of the child to be vested with the county child welfare department pending the hearing held pursuant to Section 355 or further order of the court, and order services to be provided as soon as possible to reunify the child and their family, if appropriate.
(h)(1)(A)If the child is not released from custody, the court may order the temporary placement of the child in any of the following for a period not to exceed 15 judicial days:
(i)The home of a relative, an extended family member, as defined in Section 224.1 and Section 1903 of the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.), or a nonrelative extended family member, as defined in Section 362.7, that has been assessed pursuant to Section 361.4.
(ii)The approved home of a resource family, as described in Section 16519.5, or a home licensed or approved by the Indian childs tribe.
(iii)An emergency shelter or other suitable licensed place.
(iv)A place exempt from licensure designated by the juvenile court.
(B)A youth homelessness prevention center licensed by the State Department of Social Services pursuant to Section 1502.35 of the Health and Safety Code shall not be a placement option pursuant to this section.
(C)If the court knows or has reason to know that the child is an Indian child, the Indian child shall be detained in a home that complies with the placement preferences set forth in Section 361.31 and in the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.), unless the court finds good cause exists pursuant to Section 361.31 not to follow the placement preferences. If the court finds good cause not to follow the placement preferences for detention, this finding does not affect the requirement that a diligent search be made for a subsequent placement within the placement preferences.
(2)Relatives shall be given preferential consideration for placement of the child. As used in this section, relative means an adult who is related to the child by blood, adoption, or affinity within the fifth degree of kinship, including stepparents, stepsiblings, and all relatives whose status is preceded by the words great, great-great, or grand, or the spouse of any of these persons, even if the marriage was terminated by death or dissolution.
(3)When placing in the home of a relative, an extended family member, as defined in Section 224.1 and Section 1903 of the federal Indian Child Welfare Act of 1978, or nonrelative extended family member, the court shall consider the recommendations of the social worker based on the assessment pursuant to Section 361.4 of the home of the relative, extended family member, or nonrelative extended family member, including the results of a criminal records check and prior child abuse allegations, if any, before ordering that the child be placed with a relative or nonrelative extended family member. The court may authorize the placement of a child on a temporary basis in the home of a relative, regardless of the status of any criminal record exemption or resource family approval, if the court finds that the placement does not pose a risk to the health and safety of the child. The court shall order the parent to disclose to the social worker the names, residences, and any known identifying information of any maternal or paternal relatives of the child. The social worker shall initiate the assessment pursuant to Section 361.3 of any relative to be considered for continuing placement.
(i)In the case of an Indian child, any order detaining the child pursuant to this section shall be considered an emergency removal within the meaning of Section 1922 of the federal Indian Child Welfare Act of 1978. The emergency proceeding shall terminate if the child is returned to the custody of the parent, parents, or Indian custodian, the child has been transferred to the custody and jurisdiction of the childs tribe, or the agency or another party to the proceeding recommends that the child be removed from the physical custody of their parent or parents or Indian custodian pursuant to Section 361 or 361.2.
(j)(1)At the initial hearing upon the petition filed in accordance with subdivision (c) of Rule 5.520 of the California Rules of Court or anytime thereafter up until the time that the minor is adjudged a dependent child of the court or a finding is made dismissing the petition, the court may temporarily limit the right of the parent or guardian to make educational or developmental services decisions for the child and temporarily appoint a responsible adult to make educational or developmental services decisions for the child if all of the following conditions are found:
(A)The parent or guardian is unavailable, unable, or unwilling to exercise educational or developmental services rights for the child.
(B)The county placing agency has made diligent efforts to locate and secure the participation of the parent or guardian in educational or developmental services decisionmaking.
(C)The childs educational and developmental services needs cannot be met without the temporary appointment of a responsible adult.
(2)If the court limits the parents educational rights under this subdivision, the court shall determine whether there is a responsible adult who is a relative, nonrelative extended family member, or other adult known to the child and who is available and willing to serve as the childs educational representative before appointing an educational representative or surrogate who is not known to the child.
(3)If the court cannot identify a responsible adult to make educational decisions for the child and the appointment of a surrogate parent, as defined in subdivision (a) of Section 56050 of the Education Code, is not warranted, the court may, with the input of any interested person, make educational decisions for the child. If the child is receiving services from a regional center, the provision of any developmental services related to the courts decision shall be consistent with the childs individual program plan and pursuant to the Lanterman Developmental Disabilities Services Act (Division 4.5 (commencing with Section 4500)). If the court cannot identify a responsible adult to make developmental services decisions for the child, the court may, with the input of any interested person, make developmental services decisions for the child. If the court makes educational or developmental services decisions for the child, the court shall also issue appropriate orders to ensure that every effort is made to identify a responsible adult to make future educational or developmental services decisions for the child.
(4)A temporary appointment of a responsible adult and temporary limitation on the right of the parent or guardian to make educational or developmental services decisions for the child shall be specifically addressed in the court order. An order made under this section shall expire at the conclusion of the hearing held pursuant to Section 361 or upon dismissal of the petition. Upon the entering of disposition orders, additional needed limitation on the parents or guardians educational or developmental services rights shall be addressed pursuant to Section 361.
(5)This section does not remove the obligation to appoint surrogate parents for students with disabilities who are without parental representation in special education procedures, as required by state and federal law, including Section 1415(b)(2) of Title 20 of the United States Code, Section 56050 of the Education Code, Section 7579.5 of the Government Code, and Rule 5.650 of the California Rules of Court.
(6)If the court appoints a developmental services decisionmaker pursuant to this section, the developmental services decisionmaker shall have the authority to access the childs information and records pursuant to subdivision (u) of Section 4514 and paragraph (23) of subdivision (a) of Section 5328, and to act on the childs behalf for the purposes of the individual program plan process pursuant to Sections 4646, 4646.5, and 4648 and the fair hearing process pursuant to Chapter 7 (commencing with Section 4700) of Division 4.5, and as set forth in the court order.
(k)For a placement made on or after October 1, 2021, each temporary placement of the child pursuant to subdivision (h) in a short-term residential therapeutic program shall comply with the requirements of Section 4096 and be reviewed by the court pursuant to Section 361.22.
(l)For a placement made on or after July 1, 2022, each temporary placement of the child pursuant to subdivision (h) in a community treatment facility shall comply with the requirements of Section 4096 and be reviewed by the court pursuant to Section 361.22.
SEC. 1.3.Section 319 of the Welfare and Institutions Code is amended to read:319.(a)At the initial petition hearing, the court shall review the report described in subdivision (b) and examine the childs parents, guardians, Indian custodian, or other persons having relevant knowledge and hear the relevant evidence as the child, the childs parents or guardians, the childs Indian custodian, the petitioner, the Indian childs tribe, or their counsel desires to present. The court may examine the child, as provided in Section 350.
(b)The social worker shall report to the court on the reasons why the child has been removed from the parents, guardians, or Indian custodians physical custody; the need, if any, for continued detention; and the available services and the referral methods to those services that could facilitate the return of the child to the custody of the childs parents, guardians, or Indian custodian; and shall document their efforts, and in the case of an Indian child, the active efforts as defined in subdivision (f) of Section 224.1, and results of those efforts by the social worker to locate any relatives or kin who could provide family support or possible placement of the child or nonminor dependent and the names of those relatives or kin. The report shall also include information regarding any short-term or long-term harms, or both short-term and long-term harms, to the child that may result from their removal from the custody of their parent, guardian, or Indian custodian, including, but not limited to, the information specified in subparagraph (A) of paragraph (2) of subdivision (c), the placement options, including an assessment of the least disruptive alternatives to returning the child to the custody of their parent, guardian, or Indian custodian, including compliance with the placement preferences set forth in Section 361.31 in the case of an Indian child, and measures that may be available to alleviate disruption and minimize the harms of removal. If it is known or there is reason to know the child is an Indian child, the report shall also include all of the following:
(1)A statement of the risk of imminent physical damage or harm to the Indian child and any evidence that the emergency removal or placement continues to be necessary to prevent the imminent physical damage or harm to the child.
(2)The steps taken to provide notice to the childs parents, custodians, and tribe about the hearing pursuant to this section.
(3)If the childs parents and Indian custodians are unknown, a detailed explanation of what efforts have been made to locate and contact them, including contact with the appropriate Bureau of Indian Affairs regional director.
(4)The residence and the domicile of the Indian child.
(5)If either the residence or the domicile of the Indian child is believed to be on a reservation or in an Alaska Native village, the name of the tribe affiliated with that reservation or village.
(6)The tribal affiliation of the child and of the parents or Indian custodians.
(7)A specific and detailed account of the circumstances that caused the Indian child to be taken into temporary custody.
(8)If the child is believed to reside or be domiciled on a reservation in which the tribe exercises exclusive jurisdiction over child custody matters, a statement of efforts that have been made and that are being made to contact the tribe and transfer the child to the tribes jurisdiction.
(9)A statement of the efforts that have been taken to assist the parents or Indian custodians so the Indian child may safely be returned to their custody.
(10)The steps taken to consult and collaborate with the tribe and the outcome of that consultation and collaboration.
(c)(1)The court shall order the release of the child from custody unless a prima facie showing has been made that the child comes within Section 300, the court finds that continuance in the parents or guardians home is contrary to the childs welfare, and any of the following circumstances exist:
(A)There is a substantial danger to the physical health of the child or the child is suffering severe emotional damage, and there are no reasonable means by which the childs physical or emotional health may be protected without removing the child from the parents or guardians physical custody.
(B)There is substantial evidence that a parent, guardian, or custodian of the child is likely to flee the jurisdiction of the court, and, in the case of an Indian child, fleeing the jurisdiction will place the child at risk of imminent physical damage or harm.
(C)The child has left a placement in which the child was placed by the juvenile court.
(D)The child indicates an unwillingness to return home, if the child has been physically or sexually abused by a person residing in the home.
(2)(A)The court shall determine whether less disruptive alternatives to removal were considered by the agency, such as factors related to the impact of removal on the child, including, but not limited to, the following:
(i)A description of the relationship between the child and their parents, guardians, or Indian custodians, based on the childs perspective, and the childs response to removal and, where developmentally appropriate, their perspective on removal.
(ii)The relationship between the child and any siblings.
(iii)The relationship between the child and other members of the household.
(iv)Any disruption to the childs schooling, social relationships, and physical or emotional health that may result from placement out of the home, and in the case of an Indian child, any impact on the childs connection to their tribe, extended family members, and tribal community.
(B)If the court finds that removal is necessary under paragraph (1), the court shall, in a written order or on the record, set forth all of the following:
(i)The basis for its findings and the evidence relied on.
(ii)Its determination regarding the childs placement, including whether it complies with the placement preferences set forth in Section 361.31 and less disruptive alternatives.
(iii)Include any orders necessary to alleviate any disruption or harm to the child resulting from removal.
(C)Nothing in this paragraph permits a child to be released to a parent, legal guardian, or Indian custodian, or to be placed in an unsafe placement, due solely to the court determining the child was not offered less disruptive alternatives.
(d)If the court knows or there is reason to know the child is an Indian child, the court may only detain the Indian child if it also finds that detention is necessary to prevent imminent physical damage or harm. The court shall state on the record the facts supporting this finding.
(e)(1)If the hearing pursuant to this section is continued pursuant to Section 322 or for any other reason, the court shall find that the continuance of the child in the parents or guardians home is contrary to the childs welfare at the initial petition hearing or order the release of the child from custody.
(2)If the court knows or has reason to know the child is an Indian child, the hearing pursuant to this section may not be continued beyond 30 days unless the court finds all of the following:
(A)Restoring the child to the parent, parents, or Indian custodian would subject the child to imminent physical damage or harm.
(B)The court is unable to transfer the proceeding to the jurisdiction of the appropriate Indian tribe.
(C)It is not possible to initiate an Indian child custody proceeding as defined in Section 224.1.
(f)(1)The court shall also make a determination on the record, referencing the social workers report or other evidence relied upon, as to whether reasonable efforts were made to prevent or eliminate the need for removal of the child from their home, pursuant to subdivision (b) of Section 306, and whether there are available services that would prevent the need for further detention. Services to be considered for purposes of making this determination are case management, counseling, emergency shelter care, emergency in-home caretakers, out-of-home respite care, teaching and demonstrating homemakers, parenting training, transportation, and any other child welfare services authorized by the State Department of Social Services pursuant to Chapter 5 (commencing with Section 16500) of Part 4 of Division 9. The court shall also review whether the social worker has considered whether a referral to public assistance services pursuant to Chapter 2 (commencing with Section 11200) and Chapter 7 (commencing with Section 14000) of Part 3 of, Chapter 1 (commencing with Section 17000) of Part 5 of, and Chapter 10 (commencing with Section 18900) of Part 6 of, Division 9 would have eliminated the need to take temporary custody of the child or would prevent the need for further detention. This determination shall apply to each child individually, and the considerations shall be tailored to the individual child.
(2)If the court knows or has reason to know the child is an Indian child, the court shall also determine whether the county welfare department made active efforts to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian family. The court shall order the county welfare department to initiate or continue services or programs pending disposition pursuant to Section 358.
(3)If the child can be returned to the custody of their parent, guardian, or Indian custodian through the provision of those services, the court shall place the child with their parent, guardian, or Indian custodian and order that the services shall be provided. If the child cannot be returned to the physical custody of their parent or guardian, the court shall determine if there is a relative who is able and willing to care for the child, and has been assessed pursuant to Section 361.4.
(4)In order to preserve the bond between the child and the parent and to facilitate family reunification, the court shall consider whether the child can be returned to the custody of their parent who is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with their parent. The fact that the parent is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with their parent shall not be, for that reason alone, prima facie evidence of substantial danger. The court shall specify the factual basis for its conclusion that the return of the child to the custody of their parent would pose a substantial danger or would not pose a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child.
(g)If a court orders a child detained, the court shall state the facts on which the decision is based, specify why the initial removal was necessary, reference the social workers report or other evidence relied upon to make its determination whether continuance in the home of the parent or legal guardian is contrary to the childs welfare, order temporary placement and care of the child to be vested with the county child welfare department pending the hearing held pursuant to Section 355 or further order of the court, and order services to be provided as soon as possible to reunify the child and their family, if appropriate.
(h)(1)(A)If the child is not released from custody, the court may order the temporary placement of the child in any of the following for a period not to exceed 15 judicial days:
(i)The home of a relative, an extended family member, as defined in Section 224.1 and Section 1903 of the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.), or a nonrelative extended family member, as defined in Section 362.7, that has been assessed pursuant to Section 361.4.
(ii)The approved home of a resource family, as described in Section 16519.5, or a home licensed or approved by the Indian childs tribe.
(iii)An emergency shelter or other suitable licensed place.
(iv)A place exempt from licensure designated by the juvenile court.
(B)A youth homelessness prevention center licensed by the State Department of Social Services pursuant to Section 1502.35 of the Health and Safety Code shall not be a placement option pursuant to this section.
(C)If the court knows or has reason to know that the child is an Indian child, the Indian child shall be detained in a home that complies with the placement preferences set forth in Section 361.31 and in the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.), unless the court finds good cause exists pursuant to Section 361.31 not to follow the placement preferences. If the court finds good cause not to follow the placement preferences for detention, this finding does not affect the requirement that a diligent search be made for a subsequent placement within the placement preferences.
(2)Relatives shall be given preferential consideration for placement of the child. As used in this section, relative means an adult who is related to the child by blood, adoption, or affinity within the fifth degree of kinship, including stepparents, stepsiblings, and all relatives whose status is preceded by the words great, great-great, or grand, or the spouse of any of these persons, even if the marriage was terminated by death or dissolution.
(3)When placing in the home of a relative, an extended family member, as defined in Section 224.1 and Section 1903 of the federal Indian Child Welfare Act of 1978, or nonrelative extended family member, the court shall consider the recommendations of the social worker based on the assessment pursuant to Section 361.4 of the home of the relative, extended family member, or nonrelative extended family member, including the results of a criminal records check and prior child abuse allegations, if any, before ordering that the child be placed with a relative or nonrelative extended family member. The court may authorize the placement of a child on a temporary basis in the home of a relative, regardless of the status of any criminal record exemption or resource family approval, if the court finds that the placement does not pose a risk to the health and safety of the child. The court shall order the parent to disclose to the social worker the names, residences, and any known identifying information of any maternal or paternal relatives of the child. The social worker shall initiate the assessment pursuant to Section 361.3 of any relative to be considered for continuing placement.
(i)In the case of an Indian child, any order detaining the child pursuant to this section shall be considered an emergency removal within the meaning of Section 224.1 of this code, and as described in subdivision (g) of Section 305.5, and Section 1922 of the federal Indian Child Welfare Act of 1978. The emergency proceeding shall terminate if the child is returned to the custody of the parent, parents, or Indian custodian, the child has been transferred to the custody and jurisdiction of the childs tribe, or the agency or another party to the proceeding recommends that the child be removed from the physical custody of their parent or parents or Indian custodian pursuant to Section 361 or 361.2.
(j)(1)At the initial hearing upon the petition filed in accordance with subdivision (c) of Rule 5.520 of the California Rules of Court or anytime thereafter up until the time that the minor is adjudged a dependent child of the court or a finding is made dismissing the petition, the court may temporarily limit the right of the parent or guardian to make educational or developmental services decisions for the child and temporarily appoint a responsible adult to make educational or developmental services decisions for the child if all of the following conditions are found:
(A)The parent or guardian is unavailable, unable, or unwilling to exercise educational or developmental services rights for the child.
(B)The county placing agency has made diligent efforts to locate and secure the participation of the parent or guardian in educational or developmental services decisionmaking.
(C)The childs educational and developmental services needs cannot be met without the temporary appointment of a responsible adult.
(2)If the court limits the parents educational rights under this subdivision, the court shall determine whether there is a responsible adult who is a relative, nonrelative extended family member, or other adult known to the child and who is available and willing to serve as the childs educational representative before appointing an educational representative or surrogate who is not known to the child.
(3)If the court cannot identify a responsible adult to make educational decisions for the child and the appointment of a surrogate parent, as defined in subdivision (a) of Section 56050 of the Education Code, is not warranted, the court may, with the input of any interested person, make educational decisions for the child. If the child is receiving services from a regional center, the provision of any developmental services related to the courts decision shall be consistent with the childs individual program plan and pursuant to the Lanterman Developmental Disabilities Services Act (Division 4.5 (commencing with Section 4500)). If the court cannot identify a responsible adult to make developmental services decisions for the child, the court may, with the input of any interested person, make developmental services decisions for the child. If the court makes educational or developmental services decisions for the child, the court shall also issue appropriate orders to ensure that every effort is made to identify a responsible adult to make future educational or developmental services decisions for the child.
(4)A temporary appointment of a responsible adult and temporary limitation on the right of the parent or guardian to make educational or developmental services decisions for the child shall be specifically addressed in the court order. An order made under this section shall expire at the conclusion of the hearing held pursuant to Section 361 or upon dismissal of the petition. Upon the entering of disposition orders, additional needed limitation on the parents or guardians educational or developmental services rights shall be addressed pursuant to Section 361.
(5)This section does not remove the obligation to appoint surrogate parents for students with disabilities who are without parental representation in special education procedures, as required by state and federal law, including Section 1415(b)(2) of Title 20 of the United States Code, Section 56050 of the Education Code, Section 7579.5 of the Government Code, and Rule 5.650 of the California Rules of Court.
(6)If the court appoints a developmental services decisionmaker pursuant to this section, the developmental services decisionmaker shall have the authority to access the childs information and records pursuant to subdivision (u) of Section 4514 and paragraph (23) of subdivision (a) of Section 5328, and to act on the childs behalf for the purposes of the individual program plan process pursuant to Sections 4646, 4646.5, and 4648 and the fair hearing process pursuant to Chapter 7 (commencing with Section 4700) of Division 4.5, and as set forth in the court order.
(k)For a placement made on or after October 1, 2021, each temporary placement of the child pursuant to subdivision (h) in a short-term residential therapeutic program shall comply with the requirements of Section 4096 and be reviewed by the court pursuant to Section 361.22.
(l)For a placement made on or after July 1, 2022, each temporary placement of the child pursuant to subdivision (h) in a community treatment facility shall comply with the requirements of Section 4096 and be reviewed by the court pursuant to Section 361.22.
SEC. 2.(a)Section 1.1 of this bill incorporates amendments to Section 319 of the Welfare and Institutions Code proposed by this bill and Assembly Bill 81. That section of this bill shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2024, (2) each bill amends Section 319 of the Welfare and Institutions Code, (3) Assembly Bill 448 is not enacted or as enacted does not amend that section, and (4) this bill is enacted after Assembly Bill 81, in which case Section 319 of the Welfare and Institutions Code, as amended by Assembly Bill 81, shall remain operative only until the operative date of this bill, at which time Section 1.1 of this bill shall become operative, and Sections 1, 1.2, and 1.3 of this bill shall not become operative.
(b)Section 1.2 of this bill incorporates amendments to Section 319 of the Welfare and Institutions Code proposed by both this bill and Assembly Bill 448. That section of this bill shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2024, (2) each bill amends Section 319 of the Welfare and Institutions Code, (3) Assembly Bill 81 is not enacted or as enacted does not amend that section, and (4) this bill is enacted after Assembly Bill 448, in which case Sections 1, 1.1, and 1.3 of this bill shall not become operative.
(c)Section 1.3 of this bill incorporates amendments to Section 319 of the Welfare and Institutions Code proposed by this bill, Assembly Bill 81, and Assembly Bill 448. That section of this bill shall only become operative if (1) all three bills are enacted and become effective on or before January 1, 2024, (2) all three bills amend Section 319 of the Welfare and Institutions Code, and (3) this bill is enacted after Assembly Bill 81 and Assembly Bill 448, in which case Section 319 of the Welfare and Institutions Code, as amended by Assembly Bill 81, shall remain operative only until the operative date of this bill, at which time Section 1.3 of this bill shall become operative, and Sections 1, 1.1, and 1.2 of this bill shall not become operative.
SEC. 3.To the extent that this act has an overall effect of increasing the costs already borne by a local agency for programs or levels of service mandated by the 2011 Realignment Legislation within the meaning of Section 36 of Article XIII of the California Constitution, it shall apply to local agencies only to the extent that the state provides annual funding for the cost increase. Any new program or higher level of service provided by a local agency pursuant to this act above the level for which funding has been provided shall not require a subvention of funds by the state or otherwise be subject to Section 6 of Article XIIIB of the California Constitution.
(a)At the initial petition hearing, the court shall review the report described in subdivision (b) and examine the childs parents, guardians, Indian custodian, or other persons having relevant knowledge and hear the relevant evidence as the child, the childs parents or guardians, the childs Indian custodian, the petitioner, the Indian childs tribe, or their counsel desires to present. The court may examine the child, as provided in Section 350.
(b)The social worker shall report to the court on the reasons why the child has been removed from the parents, guardians, or Indian custodians physical custody, the need, if any, for continued detention, the available services and the referral methods to those services that could facilitate the return of the child to the custody of the childs parents, guardians, or Indian custodian, and whether there are any relatives who are able and willing to take temporary physical custody of the child. The report shall also include information regarding any short-term or long-term harms, or both short-term and long-term harms, to the child that may result from their removal from the custody of their parent, guardian, or Indian custodian, including, but not limited to, the information specified in subparagraph (A) of paragraph (2) of subdivision (c), the placement options, including an assessment of the least disruptive alternatives to returning the child to the custody of their parent, guardian, or Indian custodian, including compliance with the placement preferences set forth in Section 361.31 in the case of an Indian child, and measures that may be available to alleviate disruption and minimize the harms of removal. If it is known or there is reason to know the child is an Indian child, the report shall also include all of the following:
(1)A statement of the risk of imminent physical damage or harm to the Indian child and any evidence that the emergency removal or placement continues to be necessary to prevent the imminent physical damage or harm to the child.
(2)The steps taken to provide notice to the childs parents, custodians, and tribe about the hearing pursuant to this section.
(3)If the childs parents and Indian custodians are unknown, a detailed explanation of what efforts have been made to locate and contact them, including contact with the appropriate Bureau of Indian Affairs regional director.
(4)The residence and the domicile of the Indian child.
(5)If either the residence or the domicile of the Indian child is believed to be on a reservation or in an Alaska Native village, the name of the tribe affiliated with that reservation or village.
(6)The tribal affiliation of the child and of the parents or Indian custodians.
(7)A specific and detailed account of the circumstances that caused the Indian child to be taken into temporary custody.
(8)If the child is believed to reside or be domiciled on a reservation in which the tribe exercises exclusive jurisdiction over child custody matters, a statement of efforts that have been made and that are being made to contact the tribe and transfer the child to the tribes jurisdiction.
(9)A statement of the efforts that have been taken to assist the parents or Indian custodians so the Indian child may safely be returned to their custody.
(10)The steps taken to consult and collaborate with the tribe and the outcome of that consultation and collaboration.
(c)(1)The court shall order the release of the child from custody unless a prima facie showing has been made that the child comes within Section 300, the court finds that continuance in the parents or guardians home is contrary to the childs welfare, and any of the following circumstances exist:
(A)There is a substantial danger to the physical health of the child or the child is suffering severe emotional damage, and there are no reasonable means by which the childs physical or emotional health may be protected without removing the child from the parents or guardians physical custody.
(B)There is substantial evidence that a parent, guardian, or custodian of the child is likely to flee the jurisdiction of the court, and, in the case of an Indian child, fleeing the jurisdiction will place the child at risk of imminent physical damage or harm.
(C)The child has left a placement in which the child was placed by the juvenile court.
(D)The child indicates an unwillingness to return home, if the child has been physically or sexually abused by a person residing in the home.
(2)(A)The court shall determine whether less disruptive alternatives to removal were considered by the agency, such as factors related to the impact of removal on the child, including, but not limited to, the following:
(i)A description of the relationship between the child and their parents, guardians, or Indian custodians, based on the childs perspective, and the childs response to removal and, where developmentally appropriate, their perspective on removal.
(ii)The relationship between the child and any siblings.
(iii)The relationship between the child and other members of the household.
(iv)Any disruption to the childs schooling, social relationships, and physical or emotional health that may result from placement out of the home, and in the case of an Indian child, any impact on the childs connection to their tribe, extended family members, and tribal community.
(B)If the court finds that removal is necessary under paragraph (1), the court shall, in a written order or on the record, set forth all of the following:
(i)The basis for its findings and the evidence relied on.
(ii)Its determination regarding the childs placement, including whether it complies with the placement preferences set forth in Section 361.31 and less disruptive alternatives.
(iii)Include any orders necessary to alleviate any disruption or harm to the child resulting from removal.
(C)Nothing in this paragraph permits a child to be released to a parent, legal guardian, or Indian custodian, or to be placed in an unsafe placement, due solely to the court determining the child was not offered less disruptive alternatives.
(d)If the court knows or there is reason to know the child is an Indian child, the court may only detain the Indian child if it also finds that detention is necessary to prevent imminent physical damage or harm. The court shall state on the record the facts supporting this finding.
(e)(1)If the hearing pursuant to this section is continued pursuant to Section 322 or for any other reason, the court shall find that the continuance of the child in the parents or guardians home is contrary to the childs welfare at the initial petition hearing or order the release of the child from custody.
(2)If the court knows or has reason to know the child is an Indian child, the hearing pursuant to this section may not be continued beyond 30 days unless the court finds all of the following:
(A)Restoring the child to the parent, parents, or Indian custodian would subject the child to imminent physical damage or harm.
(B)The court is unable to transfer the proceeding to the jurisdiction of the appropriate Indian tribe.
(C)It is not possible to initiate an Indian child custody proceeding as defined in Section 224.1.
(f)(1)The court shall also make a determination on the record, referencing the social workers report or other evidence relied upon, as to whether reasonable efforts were made to prevent or eliminate the need for removal of the child from their home, pursuant to subdivision (b) of Section 306, and whether there are available services that would prevent the need for further detention. Services to be considered for purposes of making this determination are case management, counseling, emergency shelter care, emergency in-home caretakers, out-of-home respite care, teaching and demonstrating homemakers, parenting training, transportation, and any other child welfare services authorized by the State Department of Social Services pursuant to Chapter 5 (commencing with Section 16500) of Part 4 of Division 9. The court shall also review whether the social worker has considered whether a referral to public assistance services pursuant to Chapter 2 (commencing with Section 11200) and Chapter 7 (commencing with Section 14000) of Part 3 of, Chapter 1 (commencing with Section 17000) of Part 5 of, and Chapter 10 (commencing with Section 18900) of Part 6 of, Division 9 would have eliminated the need to take temporary custody of the child or would prevent the need for further detention. This determination shall apply to each child individually, and the considerations shall be tailored to the individual child.
(2)If the court knows or has reason to know the child is an Indian child, the court shall also determine whether the county welfare department made active efforts to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian family. The court shall order the county welfare department to initiate or continue services or programs pending disposition pursuant to Section 358.
(3)If the child can be returned to the custody of their parent, guardian, or Indian custodian through the provision of those services, the court shall place the child with their parent, guardian, or Indian custodian and order that the services shall be provided. If the child cannot be returned to the physical custody of their parent or guardian, the court shall determine if there is a relative who is able and willing to care for the child, and has been assessed pursuant to Section 361.4.
(4)In order to preserve the bond between the child and the parent and to facilitate family reunification, the court shall consider whether the child can be returned to the custody of their parent who is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with their parent. The fact that the parent is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with their parent shall not be, for that reason alone, prima facie evidence of substantial danger. The court shall specify the factual basis for its conclusion that the return of the child to the custody of their parent would pose a substantial danger or would not pose a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child.
(g)If a court orders a child detained, the court shall state the facts on which the decision is based, specify why the initial removal was necessary, reference the social workers report or other evidence relied upon to make its determination whether continuance in the home of the parent or legal guardian is contrary to the childs welfare, order temporary placement and care of the child to be vested with the county child welfare department pending the hearing held pursuant to Section 355 or further order of the court, and order services to be provided as soon as possible to reunify the child and their family, if appropriate.
(h)(1)(A)If the child is not released from custody, the court may order the temporary placement of the child in any of the following for a period not to exceed 15 judicial days:
(i)The home of a relative, an extended family member, as defined in Section 224.1 and Section 1903 of the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.), or a nonrelative extended family member, as defined in Section 362.7, that has been assessed pursuant to Section 361.4.
(ii)The approved home of a resource family, as described in Section 16519.5, or a home licensed or approved by the Indian childs tribe.
(iii)An emergency shelter or other suitable licensed place.
(iv)A place exempt from licensure designated by the juvenile court.
(B)A youth homelessness prevention center licensed by the State Department of Social Services pursuant to Section 1502.35 of the Health and Safety Code shall not be a placement option pursuant to this section.
(C)If the court knows or has reason to know that the child is an Indian child, the Indian child shall be detained in a home that complies with the placement preferences set forth in Section 361.31 and in the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.), unless the court finds good cause exists pursuant to Section 361.31 not to follow the placement preferences. If the court finds good cause not to follow the placement preferences for detention, this finding does not affect the requirement that a diligent search be made for a subsequent placement within the placement preferences.
(2)Relatives shall be given preferential consideration for placement of the child. As used in this section, relative means an adult who is related to the child by blood, adoption, or affinity within the fifth degree of kinship, including stepparents, stepsiblings, and all relatives whose status is preceded by the words great, great-great, or grand, or the spouse of any of these persons, even if the marriage was terminated by death or dissolution.
(3)When placing in the home of a relative, an extended family member, as defined in Section 224.1 and Section 1903 of the federal Indian Child Welfare Act of 1978, or nonrelative extended family member, the court shall consider the recommendations of the social worker based on the assessment pursuant to Section 361.4 of the home of the relative, extended family member, or nonrelative extended family member, including the results of a criminal records check and prior child abuse allegations, if any, before ordering that the child be placed with a relative or nonrelative extended family member. The court may authorize the placement of a child on a temporary basis in the home of a relative, regardless of the status of any criminal record exemption or resource family approval, if the court finds that the placement does not pose a risk to the health and safety of the child. The court shall order the parent to disclose to the social worker the names, residences, and any known identifying information of any maternal or paternal relatives of the child. The social worker shall initiate the assessment pursuant to Section 361.3 of any relative to be considered for continuing placement.
(i)In the case of an Indian child, any order detaining the child pursuant to this section shall be considered an emergency removal within the meaning of Section 1922 of the federal Indian Child Welfare Act of 1978. The emergency proceeding shall terminate if the child is returned to the custody of the parent, parents, or Indian custodian, the child has been transferred to the custody and jurisdiction of the childs tribe, or the agency or another party to the proceeding recommends that the child be removed from the physical custody of their parent or parents or Indian custodian pursuant to Section 361 or 361.2.
(j)(1)At the initial hearing upon the petition filed in accordance with subdivision (c) of Rule 5.520 of the California Rules of Court or anytime thereafter up until the time that the minor is adjudged a dependent child of the court or a finding is made dismissing the petition, the court may temporarily limit the right of the parent or guardian to make educational or developmental services decisions for the child and temporarily appoint a responsible adult to make educational or developmental services decisions for the child if all of the following conditions are found:
(A)The parent or guardian is unavailable, unable, or unwilling to exercise educational or developmental services rights for the child.
(B)The county placing agency has made diligent efforts to locate and secure the participation of the parent or guardian in educational or developmental services decisionmaking.
(C)The childs educational and developmental services needs cannot be met without the temporary appointment of a responsible adult.
(2)If the court limits the parents educational rights under this subdivision, the court shall determine whether there is a responsible adult who is a relative, nonrelative extended family member, or other adult known to the child and who is available and willing to serve as the childs educational representative before appointing an educational representative or surrogate who is not known to the child.
(3)If the court cannot identify a responsible adult to make educational decisions for the child and the appointment of a surrogate parent, as defined in subdivision (a) of Section 56050 of the Education Code, is not warranted, the court may, with the input of any interested person, make educational decisions for the child. If the child is receiving services from a regional center, the provision of any developmental services related to the courts decision shall be consistent with the childs individual program plan and pursuant to the Lanterman Developmental Disabilities Services Act (Division 4.5 (commencing with Section 4500)). If the court cannot identify a responsible adult to make developmental services decisions for the child, the court may, with the input of any interested person, make developmental services decisions for the child. If the court makes educational or developmental services decisions for the child, the court shall also issue appropriate orders to ensure that every effort is made to identify a responsible adult to make future educational or developmental services decisions for the child.
(4)A temporary appointment of a responsible adult and temporary limitation on the right of the parent or guardian to make educational or developmental services decisions for the child shall be specifically addressed in the court order. An order made under this section shall expire at the conclusion of the hearing held pursuant to Section 361 or upon dismissal of the petition. Upon the entering of disposition orders, additional needed limitation on the parents or guardians educational or developmental services rights shall be addressed pursuant to Section 361.
(5)This section does not remove the obligation to appoint surrogate parents for students with disabilities who are without parental representation in special education procedures, as required by state and federal law, including Section 1415(b)(2) of Title 20 of the United States Code, Section 56050 of the Education Code, Section 7579.5 of the Government Code, and Rule 5.650 of the California Rules of Court.
(6)If the court appoints a developmental services decisionmaker pursuant to this section, the developmental services decisionmaker shall have the authority to access the childs information and records pursuant to subdivision (u) of Section 4514 and paragraph (23) of subdivision (a) of Section 5328, and to act on the childs behalf for the purposes of the individual program plan process pursuant to Sections 4646, 4646.5, and 4648 and the fair hearing process pursuant to Chapter 7 (commencing with Section 4700) of Division 4.5, and as set forth in the court order.
(k)For a placement made on or after October 1, 2021, each temporary placement of the child pursuant to subdivision (h) in a short-term residential therapeutic program shall comply with the requirements of Section 4096 and be reviewed by the court pursuant to Section 361.22.
(l)For a placement made on or after July 1, 2022, each temporary placement of the child pursuant to subdivision (h) in a community treatment facility shall comply with the requirements of Section 4096 and be reviewed by the court pursuant to Section 361.22.
SEC. 1.1.Section 319 of the Welfare and Institutions Code is amended to read:319.(a)At the initial petition hearing, the court shall review the report described in subdivision (b) and examine the childs parents, guardians, Indian custodian, or other persons having relevant knowledge and hear the relevant evidence as the child, the childs parents or guardians, the childs Indian custodian, the petitioner, the Indian childs tribe, or their counsel desires to present. The court may examine the child, as provided in Section 350.
(b)The social worker shall report to the court on the reasons why the child has been removed from the parents, guardians, or Indian custodians physical custody, the need, if any, for continued detention, the available services and the referral methods to those services that could facilitate the return of the child to the custody of the childs parents, guardians, or Indian custodian, and whether there are any relatives who are able and willing to take temporary physical custody of the child. The report shall also include information regarding any short-term or long-term harms, or both short-term and long-term harms, to the child that may result from their removal from the custody of their parent, guardian, or Indian custodian, including, but not limited to, the information specified in subparagraph (A) of paragraph (2) of subdivision (c), the placement options, including an assessment of the least disruptive alternatives to returning the child to the custody of their parent, guardian, or Indian custodian, including compliance with the placement preferences set forth in Section 361.31 in the case of an Indian child, and measures that may be available to alleviate disruption and minimize the harms of removal. If it is known or there is reason to know the child is an Indian child, the report shall also include all of the following:
(1)A statement of the risk of imminent physical damage or harm to the Indian child and any evidence that the emergency removal or placement continues to be necessary to prevent the imminent physical damage or harm to the child.
(2)The steps taken to provide notice to the childs parents, custodians, and tribe about the hearing pursuant to this section.
(3)If the childs parents and Indian custodians are unknown, a detailed explanation of what efforts have been made to locate and contact them, including contact with the appropriate Bureau of Indian Affairs regional director.
(4)The residence and the domicile of the Indian child.
(5)If either the residence or the domicile of the Indian child is believed to be on a reservation or in an Alaska Native village, the name of the tribe affiliated with that reservation or village.
(6)The tribal affiliation of the child and of the parents or Indian custodians.
(7)A specific and detailed account of the circumstances that caused the Indian child to be taken into temporary custody.
(8)If the child is believed to reside or be domiciled on a reservation in which the tribe exercises exclusive jurisdiction over child custody matters, a statement of efforts that have been made and that are being made to contact the tribe and transfer the child to the tribes jurisdiction.
(9)A statement of the efforts that have been taken to assist the parents or Indian custodians so the Indian child may safely be returned to their custody.
(10)The steps taken to consult and collaborate with the tribe and the outcome of that consultation and collaboration.
(c)(1)The court shall order the release of the child from custody unless a prima facie showing has been made that the child comes within Section 300, the court finds that continuance in the parents or guardians home is contrary to the childs welfare, and any of the following circumstances exist:
(1)(A)There is a substantial danger to the physical health of the child or the child is suffering severe emotional damage, and there are no reasonable means by which the childs physical or emotional health may be protected without removing the child from the parents or guardians physical custody.
(2)(B)There is substantial evidence that a parent, guardian, or custodian of the child is likely to flee the jurisdiction of the court, and, in the case of an Indian child, fleeing the jurisdiction will place the child at risk of imminent physical damage or harm.
(3)(C)The child has left a placement in which the child was placed by the juvenile court.
(4)(D)The child indicates an unwillingness to return home, if the child has been physically or sexually abused by a person residing in the home.
(2)(A)The court shall determine whether less disruptive alternatives to removal were considered by the agency, such as factors related to the impact of removal on the child, including, but not limited to, the following:
(i)A description of the relationship between the child and their parents, guardians, or Indian custodians, based on the childs perspective, and the childs response to removal and, where developmentally appropriate, their perspective on removal.
(ii)The relationship between the child and any siblings.
(iii)The relationship between the child and other members of the household.
(iv)Any disruption to the childs schooling, social relationships, and physical or emotional health that may result from placement out of the home, and in the case of an Indian child, any impact on the childs connection to their tribe, extended family members, and tribal community.
(B)If the court finds that removal is necessary under paragraph (1), the court shall, in a written order or on the record, set forth all of the following:
(i)The basis for its findings and the evidence relied on.
(ii)Its determination regarding the childs placement, including whether it complies with the placement preferences set forth in Section 361.31 and less disruptive alternatives.
(iii)Include any orders necessary to alleviate any disruption or harm to the child resulting from removal.
(C)Nothing in this paragraph permits a child to be released to a parent, legal guardian, or Indian custodian, or to be placed in an unsafe placement, due solely to the court determining the child was not offered less disruptive alternatives.
(d)If the court knows or there is reason to know the child is an Indian child, the court may only detain the Indian child if it also finds that detention is necessary to prevent imminent physical damage or harm. The court shall state on the record the facts supporting this finding.
(e)(1)If the hearing pursuant to this section is continued pursuant to Section 322 or for any other reason, the court shall find that the continuance of the child in the parents or guardians home is contrary to the childs welfare at the initial petition hearing or order the release of the child from custody.
(2)If the court knows or has reason to know the child is an Indian child, the hearing pursuant to this section may not be continued beyond 30 days unless the court finds all of the following:
(A)Restoring the child to the parent, parents, or Indian custodian would subject the child to imminent physical damage or harm.
(B)The court is unable to transfer the proceeding to the jurisdiction of the appropriate Indian tribe.
(C)It is not possible to initiate an Indian child custody proceeding as defined in Section 224.1.
(f)(1)The court shall also make a determination on the record, referencing the social workers report or other evidence relied upon, as to whether reasonable efforts were made to prevent or eliminate the need for removal of the child from their home, pursuant to subdivision (b) of Section 306, and whether there are available services that would prevent the need for further detention. Services to be considered for purposes of making this determination are case management, counseling, emergency shelter care, emergency in-home caretakers, out-of-home respite care, teaching and demonstrating homemakers, parenting training, transportation, and any other child welfare services authorized by the State Department of Social Services pursuant to Chapter 5 (commencing with Section 16500) of Part 4 of Division 9. The court shall also review whether the social worker has considered whether a referral to public assistance services pursuant to Chapter 2 (commencing with Section 11200) and Chapter 7 (commencing with Section 14000) of Part 3 of, Chapter 1 (commencing with Section 17000) of Part 5 of, and Chapter 10 (commencing with Section 18900) of Part 6 of, Division 9 would have eliminated the need to take temporary custody of the child or would prevent the need for further detention. This determination shall apply to each child individually, and the considerations shall be tailored to the individual child.
(2)If the court knows or has reason to know the child is an Indian child, the court shall also determine whether the county welfare department made active efforts to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian family. The court shall order the county welfare department to initiate or continue services or programs pending disposition pursuant to Section 358.
(3)If the child can be returned to the custody of their parent, guardian, or Indian custodian through the provision of those services, the court shall place the child with their parent, guardian, or Indian custodian and order that the services shall be provided. If the child cannot be returned to the physical custody of their parent or guardian, the court shall determine if there is a relative who is able and willing to care for the child, and has been assessed pursuant to Section 361.4.
(4)In order to preserve the bond between the child and the parent and to facilitate family reunification, the court shall consider whether the child can be returned to the custody of their parent who is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with their parent. The fact that the parent is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with their parent shall not be, for that reason alone, prima facie evidence of substantial danger. The court shall specify the factual basis for its conclusion that the return of the child to the custody of their parent would pose a substantial danger or would not pose a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child.
(g)If a court orders a child detained, the court shall state the facts on which the decision is based, specify why the initial removal was necessary, reference the social workers report or other evidence relied upon to make its determination whether continuance in the home of the parent or legal guardian is contrary to the childs welfare, order temporary placement and care of the child to be vested with the county child welfare department pending the hearing held pursuant to Section 355 or further order of the court, and order services to be provided as soon as possible to reunify the child and their family, if appropriate.
(h)(1)(A)If the child is not released from custody, the court may order the temporary placement of the child in any of the following for a period not to exceed 15 judicial days:
(i)The home of a relative, an extended family member, as defined in Section 224.1 and Section 1903 of the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.), or a nonrelative extended family member, as defined in Section 362.7, that has been assessed pursuant to Section 361.4.
(ii)The approved home of a resource family, as defined described in Section 16519.5, or a home licensed or approved by the Indian childs tribe.
(iii)An emergency shelter or other suitable licensed place.
(iv)A place exempt from licensure designated by the juvenile court.
(B)A youth homelessness prevention center licensed by the State Department of Social Services pursuant to Section 1502.35 of the Health and Safety Code shall not be a placement option pursuant to this section.
(C)If the court knows or has reason to know that the child is an Indian child, the Indian child shall be detained in a home that complies with the placement preferences set forth in Section 361.31 and in the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.), unless the court finds good cause exists pursuant to Section 361.31 not to follow the placement preferences. If the court finds good cause not to follow the placement preferences for detention, this finding does not affect the requirement that a diligent search be made for a subsequent placement within the placement preferences.
(2)Relatives shall be given preferential consideration for placement of the child. As used in this section, relative means an adult who is related to the child by blood, adoption, or affinity within the fifth degree of kinship, including stepparents, stepsiblings, and all relatives whose status is preceded by the words great, great-great, or grand, or the spouse of any of these persons, even if the marriage was terminated by death or dissolution.
(3)When placing in the home of a relative, an extended family member, as defined in Section 224.1 and Section 1903 of the federal Indian Child Welfare Act of 1978, or nonrelative extended family member, the court shall consider the recommendations of the social worker based on the assessment pursuant to Section 361.4 of the home of the relative, extended family member, or nonrelative extended family member, including the results of a criminal records check and prior child abuse allegations, if any, before ordering that the child be placed with a relative or nonrelative extended family member. The court may authorize the placement of a child on a temporary basis in the home of a relative, regardless of the status of any criminal record exemption or resource family approval, if the court finds that the placement does not pose a risk to the health and safety of the child. The court shall order the parent to disclose to the social worker the names, residences, and any known identifying information of any maternal or paternal relatives of the child. The social worker shall initiate the assessment pursuant to Section 361.3 of any relative to be considered for continuing placement.
(i)In the case of an Indian child, any order detaining the child pursuant to this section shall be considered an emergency removal within the meaning of Section 224.1 of this code, and as described in subdivision (g) of Section 305.5, and Section 1922 of the federal Indian Child Welfare Act of 1978. The emergency proceeding shall terminate if the child is returned to the custody of the parent, parents, or Indian custodian, the child has been transferred to the custody and jurisdiction of the childs tribe, or the agency or another party to the proceeding recommends that the child be removed from the physical custody of their parent or parents or Indian custodian pursuant to Section 361 or 361.2.
(j)(1)At the initial hearing upon the petition filed in accordance with subdivision (c) of Rule 5.520 of the California Rules of Court or anytime thereafter up until the time that the minor is adjudged a dependent child of the court or a finding is made dismissing the petition, the court may temporarily limit the right of the parent or guardian to make educational or developmental services decisions for the child and temporarily appoint a responsible adult to make educational or developmental services decisions for the child if all of the following conditions are found:
(A)The parent or guardian is unavailable, unable, or unwilling to exercise educational or developmental services rights for the child.
(B)The county placing agency has made diligent efforts to locate and secure the participation of the parent or guardian in educational or developmental services decisionmaking.
(C)The childs educational and developmental services needs cannot be met without the temporary appointment of a responsible adult.
(2)If the court limits the parents educational rights under this subdivision, the court shall determine whether there is a responsible adult who is a relative, nonrelative extended family member, or other adult known to the child and who is available and willing to serve as the childs educational representative before appointing an educational representative or surrogate who is not known to the child.
(3)If the court cannot identify a responsible adult to make educational decisions for the child and the appointment of a surrogate parent, as defined in subdivision (a) of Section 56050 of the Education Code, is not warranted, the court may, with the input of any interested person, make educational decisions for the child. If the child is receiving services from a regional center, the provision of any developmental services related to the courts decision shall be consistent with the childs individual program plan and pursuant to the Lanterman Developmental Disabilities Services Act (Division 4.5 (commencing with Section 4500)). If the court cannot identify a responsible adult to make developmental services decisions for the child, the court may, with the input of any interested person, make developmental services decisions for the child. If the court makes educational or developmental services decisions for the child, the court shall also issue appropriate orders to ensure that every effort is made to identify a responsible adult to make future educational or developmental services decisions for the child.
(4)A temporary appointment of a responsible adult and temporary limitation on the right of the parent or guardian to make educational or developmental services decisions for the child shall be specifically addressed in the court order. An order made under this section shall expire at the conclusion of the hearing held pursuant to Section 361 or upon dismissal of the petition. Upon the entering of disposition orders, additional needed limitation on the parents or guardians educational or developmental services rights shall be addressed pursuant to Section 361.
(5)This section does not remove the obligation to appoint surrogate parents for students with disabilities who are without parental representation in special education procedures, as required by state and federal law, including Section 1415(b)(2) of Title 20 of the United States Code, Section 56050 of the Education Code, Section 7579.5 of the Government Code, and Rule 5.650 of the California Rules of Court.
(6)If the court appoints a developmental services decisionmaker pursuant to this section, the developmental services decisionmaker shall have the authority to access the childs information and records pursuant to subdivision (u) of Section 4514 and paragraph (23) of subdivision (a) of Section 5328, and to act on the childs behalf for the purposes of the individual program plan process pursuant to Sections 4646, 4646.5, and 4648 and the fair hearing process pursuant to Chapter 7 (commencing with Section 4700) of Division 4.5, and as set forth in the court order.
(k)For a placement made on or after October 1, 2021, each temporary placement of the child pursuant to subdivision (h) in a short-term residential therapeutic program shall comply with the requirements of Section 4096 and be reviewed by the court pursuant to Section 361.22.
(l)(l)For a placement made on or after July 1, 2022, each temporary placement of the child pursuant to subdivision (h) in a community treatment facility shall comply with the requirements of Section 4096 and be reviewed by the court pursuant to Section 361.22.
SEC. 1.2.Section 319 of the Welfare and Institutions Code is amended to read:319.(a)At the initial petition hearing, the court shall review the report described in subdivision (b) and examine the childs parents, guardians, Indian custodian, or other persons having relevant knowledge and hear the relevant evidence as the child, the childs parents or guardians, the childs Indian custodian, the petitioner, the Indian childs tribe, or their counsel desires to present. The court may examine the child, as provided in Section 350.
(b)The social worker shall report to the court on the reasons why the child has been removed from the parents, guardians, or Indian custodians physical custody, custody; the need, if any, for continued detention, detention; and the available services and the referral methods to those services that could facilitate the return of the child to the custody of the childs parents, guardians, or Indian custodian, and whether there are any relatives who are able and willing to take temporary physical custody of the child. custodian; and shall document their efforts, and in the case of an Indian child, the active efforts as defined in subdivision (f) of Section 224.1, and results of those efforts by the social worker to locate any relatives or kin who could provide family support or possible placement of the child or nonminor dependent and the names of those relatives or kin. The report shall also include information regarding any short-term or long-term harms, or both short-term and long-term harms, to the child that may result from their removal from the custody of their parent, guardian, or Indian custodian, including, but not limited to, the information specified in subparagraph (A) of paragraph (2) of subdivision (c), the placement options, including an assessment of the least disruptive alternatives to returning the child to the custody of their parent, guardian, or Indian custodian, including compliance with the placement preferences set forth in Section 361.31 in the case of an Indian child, and measures that may be available to alleviate disruption and minimize the harms of removal. If it is known or there is reason to know the child is an Indian child, the report shall also include all of the following:
(1)A statement of the risk of imminent physical damage or harm to the Indian child and any evidence that the emergency removal or placement continues to be necessary to prevent the imminent physical damage or harm to the child.
(2)The steps taken to provide notice to the childs parents, custodians, and tribe about the hearing pursuant to this section.
(3)If the childs parents and Indian custodians are unknown, a detailed explanation of what efforts have been made to locate and contact them, including contact with the appropriate Bureau of Indian Affairs regional director.
(4)The residence and the domicile of the Indian child.
(5)If either the residence or the domicile of the Indian child is believed to be on a reservation or in an Alaska Native village, the name of the tribe affiliated with that reservation or village.
(6)The tribal affiliation of the child and of the parents or Indian custodians.
(7)A specific and detailed account of the circumstances that caused the Indian child to be taken into temporary custody.
(8)If the child is believed to reside or be domiciled on a reservation in which the tribe exercises exclusive jurisdiction over child custody matters, a statement of efforts that have been made and that are being made to contact the tribe and transfer the child to the tribes jurisdiction.
(9)A statement of the efforts that have been taken to assist the parents or Indian custodians so the Indian child may safely be returned to their custody.
(10)The steps taken to consult and collaborate with the tribe and the outcome of that consultation and collaboration.
(c)(1)The court shall order the release of the child from custody unless a prima facie showing has been made that the child comes within Section 300, the court finds that continuance in the parents or guardians home is contrary to the childs welfare, and any of the following circumstances exist:
(1)(A)There is a substantial danger to the physical health of the child or the child is suffering severe emotional damage, and there are no reasonable means by which the childs physical or emotional health may be protected without removing the child from the parents or guardians physical custody.
(2)(B)There is substantial evidence that a parent, guardian, or custodian of the child is likely to flee the jurisdiction of the court, and, in the case of an Indian child, fleeing the jurisdiction will place the child at risk of imminent physical damage or harm.
(3)(C)The child has left a placement in which the child was placed by the juvenile court.
(4)(D)The child indicates an unwillingness to return home, if the child has been physically or sexually abused by a person residing in the home.
(2)(A)The court shall determine whether less disruptive alternatives to removal were considered by the agency, such as factors related to the impact of removal on the child, including, but not limited to, the following:
(i)A description of the relationship between the child and their parents, guardians, or Indian custodians, based on the childs perspective, and the childs response to removal and, where developmentally appropriate, their perspective on removal.
(ii)The relationship between the child and any siblings.
(iii)The relationship between the child and other members of the household.
(iv)Any disruption to the childs schooling, social relationships, and physical or emotional health that may result from placement out of the home, and in the case of an Indian child, any impact on the childs connection to their tribe, extended family members, and tribal community.
(B)If the court finds that removal is necessary under paragraph (1), the court shall, in a written order or on the record, set forth all of the following:
(i)The basis for its findings and the evidence relied on.
(ii)Its determination regarding the childs placement, including whether it complies with the placement preferences set forth in Section 361.31 and less disruptive alternatives.
(iii)Include any orders necessary to alleviate any disruption or harm to the child resulting from removal.
(C)Nothing in this paragraph permits a child to be released to a parent, legal guardian, or Indian custodian, or to be placed in an unsafe placement, due solely to the court determining the child was not offered less disruptive alternatives.
(d)If the court knows or there is reason to know the child is an Indian child, the court may only detain the Indian child if it also finds that detention is necessary to prevent imminent physical damage or harm. The court shall state on the record the facts supporting this finding.
(e)(1)If the hearing pursuant to this section is continued pursuant to Section 322 or for any other reason, the court shall find that the continuance of the child in the parents or guardians home is contrary to the childs welfare at the initial petition hearing or order the release of the child from custody.
(2)If the court knows or has reason to know the child is an Indian child, the hearing pursuant to this section may not be continued beyond 30 days unless the court finds all of the following:
(A)Restoring the child to the parent, parents, or Indian custodian would subject the child to imminent physical damage or harm.
(B)The court is unable to transfer the proceeding to the jurisdiction of the appropriate Indian tribe.
(C)It is not possible to initiate an Indian child custody proceeding as defined in Section 224.1.
(f)(1)The court shall also make a determination on the record, referencing the social workers report or other evidence relied upon, as to whether reasonable efforts were made to prevent or eliminate the need for removal of the child from their home, pursuant to subdivision (b) of Section 306, and whether there are available services that would prevent the need for further detention. Services to be considered for purposes of making this determination are case management, counseling, emergency shelter care, emergency in-home caretakers, out-of-home respite care, teaching and demonstrating homemakers, parenting training, transportation, and any other child welfare services authorized by the State Department of Social Services pursuant to Chapter 5 (commencing with Section 16500) of Part 4 of Division 9. The court shall also review whether the social worker has considered whether a referral to public assistance services pursuant to Chapter 2 (commencing with Section 11200) and Chapter 7 (commencing with Section 14000) of Part 3 of, Chapter 1 (commencing with Section 17000) of Part 5 of, and Chapter 10 (commencing with Section 18900) of Part 6 of, Division 9 would have eliminated the need to take temporary custody of the child or would prevent the need for further detention. This determination shall apply to each child individually, and the considerations shall be tailored to the individual child.
(2)If the court knows or has reason to know the child is an Indian child, the court shall also determine whether the county welfare department made active efforts to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian family. The court shall order the county welfare department to initiate or continue services or programs pending disposition pursuant to Section 358.
(3)If the child can be returned to the custody of their parent, guardian, or Indian custodian through the provision of those services, the court shall place the child with their parent, guardian, or Indian custodian and order that the services shall be provided. If the child cannot be returned to the physical custody of their parent or guardian, the court shall determine if there is a relative who is able and willing to care for the child, and has been assessed pursuant to Section 361.4.
(4)In order to preserve the bond between the child and the parent and to facilitate family reunification, the court shall consider whether the child can be returned to the custody of their parent who is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with their parent. The fact that the parent is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with their parent shall not be, for that reason alone, prima facie evidence of substantial danger. The court shall specify the factual basis for its conclusion that the return of the child to the custody of their parent would pose a substantial danger or would not pose a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child.
(g)If a court orders a child detained, the court shall state the facts on which the decision is based, specify why the initial removal was necessary, reference the social workers report or other evidence relied upon to make its determination whether continuance in the home of the parent or legal guardian is contrary to the childs welfare, order temporary placement and care of the child to be vested with the county child welfare department pending the hearing held pursuant to Section 355 or further order of the court, and order services to be provided as soon as possible to reunify the child and their family, if appropriate.
(h)(1)(A)If the child is not released from custody, the court may order the temporary placement of the child in any of the following for a period not to exceed 15 judicial days:
(i)The home of a relative, an extended family member, as defined in Section 224.1 and Section 1903 of the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.), or a nonrelative extended family member, as defined in Section 362.7, that has been assessed pursuant to Section 361.4.
(ii)The approved home of a resource family, as defined described in Section 16519.5, or a home licensed or approved by the Indian childs tribe.
(iii)An emergency shelter or other suitable licensed place.
(iv)A place exempt from licensure designated by the juvenile court.
(B)A youth homelessness prevention center licensed by the State Department of Social Services pursuant to Section 1502.35 of the Health and Safety Code shall not be a placement option pursuant to this section.
(C)If the court knows or has reason to know that the child is an Indian child, the Indian child shall be detained in a home that complies with the placement preferences set forth in Section 361.31 and in the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.), unless the court finds good cause exists pursuant to Section 361.31 not to follow the placement preferences. If the court finds good cause not to follow the placement preferences for detention, this finding does not affect the requirement that a diligent search be made for a subsequent placement within the placement preferences.
(2)Relatives shall be given preferential consideration for placement of the child. As used in this section, relative means an adult who is related to the child by blood, adoption, or affinity within the fifth degree of kinship, including stepparents, stepsiblings, and all relatives whose status is preceded by the words great, great-great, or grand, or the spouse of any of these persons, even if the marriage was terminated by death or dissolution.
(3)When placing in the home of a relative, an extended family member, as defined in Section 224.1 and Section 1903 of the federal Indian Child Welfare Act of 1978, or nonrelative extended family member, the court shall consider the recommendations of the social worker based on the assessment pursuant to Section 361.4 of the home of the relative, extended family member, or nonrelative extended family member, including the results of a criminal records check and prior child abuse allegations, if any, before ordering that the child be placed with a relative or nonrelative extended family member. The court may authorize the placement of a child on a temporary basis in the home of a relative, regardless of the status of any criminal record exemption or resource family approval, if the court finds that the placement does not pose a risk to the health and safety of the child. The court shall order the parent to disclose to the social worker the names, residences, and any known identifying information of any maternal or paternal relatives of the child. The social worker shall initiate the assessment pursuant to Section 361.3 of any relative to be considered for continuing placement.
(i)In the case of an Indian child, any order detaining the child pursuant to this section shall be considered an emergency removal within the meaning of Section 1922 of the federal Indian Child Welfare Act of 1978. The emergency proceeding shall terminate if the child is returned to the custody of the parent, parents, or Indian custodian, the child has been transferred to the custody and jurisdiction of the childs tribe, or the agency or another party to the proceeding recommends that the child be removed from the physical custody of their parent or parents or Indian custodian pursuant to Section 361 or 361.2.
(j)(1)At the initial hearing upon the petition filed in accordance with subdivision (c) of Rule 5.520 of the California Rules of Court or anytime thereafter up until the time that the minor is adjudged a dependent child of the court or a finding is made dismissing the petition, the court may temporarily limit the right of the parent or guardian to make educational or developmental services decisions for the child and temporarily appoint a responsible adult to make educational or developmental services decisions for the child if all of the following conditions are found:
(A)The parent or guardian is unavailable, unable, or unwilling to exercise educational or developmental services rights for the child.
(B)The county placing agency has made diligent efforts to locate and secure the participation of the parent or guardian in educational or developmental services decisionmaking.
(C)The childs educational and developmental services needs cannot be met without the temporary appointment of a responsible adult.
(2)If the court limits the parents educational rights under this subdivision, the court shall determine whether there is a responsible adult who is a relative, nonrelative extended family member, or other adult known to the child and who is available and willing to serve as the childs educational representative before appointing an educational representative or surrogate who is not known to the child.
(3)If the court cannot identify a responsible adult to make educational decisions for the child and the appointment of a surrogate parent, as defined in subdivision (a) of Section 56050 of the Education Code, is not warranted, the court may, with the input of any interested person, make educational decisions for the child. If the child is receiving services from a regional center, the provision of any developmental services related to the courts decision shall be consistent with the childs individual program plan and pursuant to the Lanterman Developmental Disabilities Services Act (Division 4.5 (commencing with Section 4500)). If the court cannot identify a responsible adult to make developmental services decisions for the child, the court may, with the input of any interested person, make developmental services decisions for the child. If the court makes educational or developmental services decisions for the child, the court shall also issue appropriate orders to ensure that every effort is made to identify a responsible adult to make future educational or developmental services decisions for the child.
(4)A temporary appointment of a responsible adult and temporary limitation on the right of the parent or guardian to make educational or developmental services decisions for the child shall be specifically addressed in the court order. An order made under this section shall expire at the conclusion of the hearing held pursuant to Section 361 or upon dismissal of the petition. Upon the entering of disposition orders, additional needed limitation on the parents or guardians educational or developmental services rights shall be addressed pursuant to Section 361.
(5)This section does not remove the obligation to appoint surrogate parents for students with disabilities who are without parental representation in special education procedures, as required by state and federal law, including Section 1415(b)(2) of Title 20 of the United States Code, Section 56050 of the Education Code, Section 7579.5 of the Government Code, and Rule 5.650 of the California Rules of Court.
(6)If the court appoints a developmental services decisionmaker pursuant to this section, the developmental services decisionmaker shall have the authority to access the childs information and records pursuant to subdivision (u) of Section 4514 and paragraph (23) of subdivision (a) of Section 5328, and to act on the childs behalf for the purposes of the individual program plan process pursuant to Sections 4646, 4646.5, and 4648 and the fair hearing process pursuant to Chapter 7 (commencing with Section 4700) of Division 4.5, and as set forth in the court order.
(k)For a placement made on or after October 1, 2021, each temporary placement of the child pursuant to subdivision (h) in a short-term residential therapeutic program shall comply with the requirements of Section 4096 and be reviewed by the court pursuant to Section 361.22.
(l)(l)For a placement made on or after July 1, 2022, each temporary placement of the child pursuant to subdivision (h) in a community treatment facility shall comply with the requirements of Section 4096 and be reviewed by the court pursuant to Section 361.22.
SEC. 1.3.Section 319 of the Welfare and Institutions Code is amended to read:319.(a)At the initial petition hearing, the court shall review the report described in subdivision (b) and examine the childs parents, guardians, Indian custodian, or other persons having relevant knowledge and hear the relevant evidence as the child, the childs parents or guardians, the childs Indian custodian, the petitioner, the Indian childs tribe, or their counsel desires to present. The court may examine the child, as provided in Section 350.
(b)The social worker shall report to the court on the reasons why the child has been removed from the parents, guardians, or Indian custodians physical custody, custody; the need, if any, for continued detention, detention; and the available services and the referral methods to those services that could facilitate the return of the child to the custody of the childs parents, guardians, or Indian custodian, and whether there are any relatives who are able and willing to take temporary physical custody of the child. custodian; and shall document their efforts, and in the case of an Indian child, the active efforts as defined in subdivision (f) of Section 224.1, and results of those efforts by the social worker to locate any relatives or kin who could provide family support or possible placement of the child or nonminor dependent and the names of those relatives or kin. The report shall also include information regarding any short-term or long-term harms, or both short-term and long-term harms, to the child that may result from their removal from the custody of their parent, guardian, or Indian custodian, including, but not limited to, the information specified in subparagraph (A) of paragraph (2) of subdivision (c), the placement options, including an assessment of the least disruptive alternatives to returning the child to the custody of their parent, guardian, or Indian custodian, including compliance with the placement preferences set forth in Section 361.31 in the case of an Indian child, and measures that may be available to alleviate disruption and minimize the harms of removal. If it is known or there is reason to know the child is an Indian child, the report shall also include all of the following:
(1)A statement of the risk of imminent physical damage or harm to the Indian child and any evidence that the emergency removal or placement continues to be necessary to prevent the imminent physical damage or harm to the child.
(2)The steps taken to provide notice to the childs parents, custodians, and tribe about the hearing pursuant to this section.
(3)If the childs parents and Indian custodians are unknown, a detailed explanation of what efforts have been made to locate and contact them, including contact with the appropriate Bureau of Indian Affairs regional director.
(4)The residence and the domicile of the Indian child.
(5)If either the residence or the domicile of the Indian child is believed to be on a reservation or in an Alaska Native village, the name of the tribe affiliated with that reservation or village.
(6)The tribal affiliation of the child and of the parents or Indian custodians.
(7)A specific and detailed account of the circumstances that caused the Indian child to be taken into temporary custody.
(8)If the child is believed to reside or be domiciled on a reservation in which the tribe exercises exclusive jurisdiction over child custody matters, a statement of efforts that have been made and that are being made to contact the tribe and transfer the child to the tribes jurisdiction.
(9)A statement of the efforts that have been taken to assist the parents or Indian custodians so the Indian child may safely be returned to their custody.
(10)The steps taken to consult and collaborate with the tribe and the outcome of that consultation and collaboration.
(c)(1)The court shall order the release of the child from custody unless a prima facie showing has been made that the child comes within Section 300, the court finds that continuance in the parents or guardians home is contrary to the childs welfare, and any of the following circumstances exist:
(1)(A)There is a substantial danger to the physical health of the child or the child is suffering severe emotional damage, and there are no reasonable means by which the childs physical or emotional health may be protected without removing the child from the parents or guardians physical custody.
(2)(B)There is substantial evidence that a parent, guardian, or custodian of the child is likely to flee the jurisdiction of the court, and, in the case of an Indian child, fleeing the jurisdiction will place the child at risk of imminent physical damage or harm.
(3)(C)The child has left a placement in which the child was placed by the juvenile court.
(4)(D)The child indicates an unwillingness to return home, if the child has been physically or sexually abused by a person residing in the home.
(2)(A)The court shall determine whether less disruptive alternatives to removal were considered by the agency, such as factors related to the impact of removal on the child, including, but not limited to, the following:
(i)A description of the relationship between the child and their parents, guardians, or Indian custodians, based on the childs perspective, and the childs response to removal and, where developmentally appropriate, their perspective on removal.
(ii)The relationship between the child and any siblings.
(iii)The relationship between the child and other members of the household.
(iv)Any disruption to the childs schooling, social relationships, and physical or emotional health that may result from placement out of the home, and in the case of an Indian child, any impact on the childs connection to their tribe, extended family members, and tribal community.
(B)If the court finds that removal is necessary under paragraph (1), the court shall, in a written order or on the record, set forth all of the following:
(i)The basis for its findings and the evidence relied on.
(ii)Its determination regarding the childs placement, including whether it complies with the placement preferences set forth in Section 361.31 and less disruptive alternatives.
(iii)Include any orders necessary to alleviate any disruption or harm to the child resulting from removal.
(C)Nothing in this paragraph permits a child to be released to a parent, legal guardian, or Indian custodian, or to be placed in an unsafe placement, due solely to the court determining the child was not offered less disruptive alternatives.
(d)If the court knows or there is reason to know the child is an Indian child, the court may only detain the Indian child if it also finds that detention is necessary to prevent imminent physical damage or harm. The court shall state on the record the facts supporting this finding.
(e)(1)If the hearing pursuant to this section is continued pursuant to Section 322 or for any other reason, the court shall find that the continuance of the child in the parents or guardians home is contrary to the childs welfare at the initial petition hearing or order the release of the child from custody.
(2)If the court knows or has reason to know the child is an Indian child, the hearing pursuant to this section may not be continued beyond 30 days unless the court finds all of the following:
(A)Restoring the child to the parent, parents, or Indian custodian would subject the child to imminent physical damage or harm.
(B)The court is unable to transfer the proceeding to the jurisdiction of the appropriate Indian tribe.
(C)It is not possible to initiate an Indian child custody proceeding as defined in Section 224.1.
(f)(1)The court shall also make a determination on the record, referencing the social workers report or other evidence relied upon, as to whether reasonable efforts were made to prevent or eliminate the need for removal of the child from their home, pursuant to subdivision (b) of Section 306, and whether there are available services that would prevent the need for further detention. Services to be considered for purposes of making this determination are case management, counseling, emergency shelter care, emergency in-home caretakers, out-of-home respite care, teaching and demonstrating homemakers, parenting training, transportation, and any other child welfare services authorized by the State Department of Social Services pursuant to Chapter 5 (commencing with Section 16500) of Part 4 of Division 9. The court shall also review whether the social worker has considered whether a referral to public assistance services pursuant to Chapter 2 (commencing with Section 11200) and Chapter 7 (commencing with Section 14000) of Part 3 of, Chapter 1 (commencing with Section 17000) of Part 5 of, and Chapter 10 (commencing with Section 18900) of Part 6 of, Division 9 would have eliminated the need to take temporary custody of the child or would prevent the need for further detention. This determination shall apply to each child individually, and the considerations shall be tailored to the individual child.
(2)If the court knows or has reason to know the child is an Indian child, the court shall also determine whether the county welfare department made active efforts to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian family. The court shall order the county welfare department to initiate or continue services or programs pending disposition pursuant to Section 358.
(3)If the child can be returned to the custody of their parent, guardian, or Indian custodian through the provision of those services, the court shall place the child with their parent, guardian, or Indian custodian and order that the services shall be provided. If the child cannot be returned to the physical custody of their parent or guardian, the court shall determine if there is a relative who is able and willing to care for the child, and has been assessed pursuant to Section 361.4.
(4)In order to preserve the bond between the child and the parent and to facilitate family reunification, the court shall consider whether the child can be returned to the custody of their parent who is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with their parent. The fact that the parent is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with their parent shall not be, for that reason alone, prima facie evidence of substantial danger. The court shall specify the factual basis for its conclusion that the return of the child to the custody of their parent would pose a substantial danger or would not pose a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child.
(g)If a court orders a child detained, the court shall state the facts on which the decision is based, specify why the initial removal was necessary, reference the social workers report or other evidence relied upon to make its determination whether continuance in the home of the parent or legal guardian is contrary to the childs welfare, order temporary placement and care of the child to be vested with the county child welfare department pending the hearing held pursuant to Section 355 or further order of the court, and order services to be provided as soon as possible to reunify the child and their family, if appropriate.
(h)(1)(A)If the child is not released from custody, the court may order the temporary placement of the child in any of the following for a period not to exceed 15 judicial days:
(i)The home of a relative, an extended family member, as defined in Section 224.1 and Section 1903 of the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.), or a nonrelative extended family member, as defined in Section 362.7, that has been assessed pursuant to Section 361.4.
(ii)The approved home of a resource family, as defined described in Section 16519.5, or a home licensed or approved by the Indian childs tribe.
(iii)An emergency shelter or other suitable licensed place.
(iv)A place exempt from licensure designated by the juvenile court.
(B)A youth homelessness prevention center licensed by the State Department of Social Services pursuant to Section 1502.35 of the Health and Safety Code shall not be a placement option pursuant to this section.
(C)If the court knows or has reason to know that the child is an Indian child, the Indian child shall be detained in a home that complies with the placement preferences set forth in Section 361.31 and in the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.), unless the court finds good cause exists pursuant to Section 361.31 not to follow the placement preferences. If the court finds good cause not to follow the placement preferences for detention, this finding does not affect the requirement that a diligent search be made for a subsequent placement within the placement preferences.
(2)Relatives shall be given preferential consideration for placement of the child. As used in this section, relative means an adult who is related to the child by blood, adoption, or affinity within the fifth degree of kinship, including stepparents, stepsiblings, and all relatives whose status is preceded by the words great, great-great, or grand, or the spouse of any of these persons, even if the marriage was terminated by death or dissolution.
(3)When placing in the home of a relative, an extended family member, as defined in Section 224.1 and Section 1903 of the federal Indian Child Welfare Act of 1978, or nonrelative extended family member, the court shall consider the recommendations of the social worker based on the assessment pursuant to Section 361.4 of the home of the relative, extended family member, or nonrelative extended family member, including the results of a criminal records check and prior child abuse allegations, if any, before ordering that the child be placed with a relative or nonrelative extended family member. The court may authorize the placement of a child on a temporary basis in the home of a relative, regardless of the status of any criminal record exemption or resource family approval, if the court finds that the placement does not pose a risk to the health and safety of the child. The court shall order the parent to disclose to the social worker the names, residences, and any known identifying information of any maternal or paternal relatives of the child. The social worker shall initiate the assessment pursuant to Section 361.3 of any relative to be considered for continuing placement.
(i)In the case of an Indian child, any order detaining the child pursuant to this section shall be considered an emergency removal within the meaning of Section 224.1 of this code, and as described in subdivision (g) of Section 305.5, and Section 1922 of the federal Indian Child Welfare Act of 1978. The emergency proceeding shall terminate if the child is returned to the custody of the parent, parents, or Indian custodian, the child has been transferred to the custody and jurisdiction of the childs tribe, or the agency or another party to the proceeding recommends that the child be removed from the physical custody of their parent or parents or Indian custodian pursuant to Section 361 or 361.2.
(j)(1)At the initial hearing upon the petition filed in accordance with subdivision (c) of Rule 5.520 of the California Rules of Court or anytime thereafter up until the time that the minor is adjudged a dependent child of the court or a finding is made dismissing the petition, the court may temporarily limit the right of the parent or guardian to make educational or developmental services decisions for the child and temporarily appoint a responsible adult to make educational or developmental services decisions for the child if all of the following conditions are found:
(A)The parent or guardian is unavailable, unable, or unwilling to exercise educational or developmental services rights for the child.
(B)The county placing agency has made diligent efforts to locate and secure the participation of the parent or guardian in educational or developmental services decisionmaking.
(C)The childs educational and developmental services needs cannot be met without the temporary appointment of a responsible adult.
(2)If the court limits the parents educational rights under this subdivision, the court shall determine whether there is a responsible adult who is a relative, nonrelative extended family member, or other adult known to the child and who is available and willing to serve as the childs educational representative before appointing an educational representative or surrogate who is not known to the child.
(3)If the court cannot identify a responsible adult to make educational decisions for the child and the appointment of a surrogate parent, as defined in subdivision (a) of Section 56050 of the Education Code, is not warranted, the court may, with the input of any interested person, make educational decisions for the child. If the child is receiving services from a regional center, the provision of any developmental services related to the courts decision shall be consistent with the childs individual program plan and pursuant to the Lanterman Developmental Disabilities Services Act (Division 4.5 (commencing with Section 4500)). If the court cannot identify a responsible adult to make developmental services decisions for the child, the court may, with the input of any interested person, make developmental services decisions for the child. If the court makes educational or developmental services decisions for the child, the court shall also issue appropriate orders to ensure that every effort is made to identify a responsible adult to make future educational or developmental services decisions for the child.
(4)A temporary appointment of a responsible adult and temporary limitation on the right of the parent or guardian to make educational or developmental services decisions for the child shall be specifically addressed in the court order. An order made under this section shall expire at the conclusion of the hearing held pursuant to Section 361 or upon dismissal of the petition. Upon the entering of disposition orders, additional needed limitation on the parents or guardians educational or developmental services rights shall be addressed pursuant to Section 361.
(5)This section does not remove the obligation to appoint surrogate parents for students with disabilities who are without parental representation in special education procedures, as required by state and federal law, including Section 1415(b)(2) of Title 20 of the United States Code, Section 56050 of the Education Code, Section 7579.5 of the Government Code, and Rule 5.650 of the California Rules of Court.
(6)If the court appoints a developmental services decisionmaker pursuant to this section, the developmental services decisionmaker shall have the authority to access the childs information and records pursuant to subdivision (u) of Section 4514 and paragraph (23) of subdivision (a) of Section 5328, and to act on the childs behalf for the purposes of the individual program plan process pursuant to Sections 4646, 4646.5, and 4648 and the fair hearing process pursuant to Chapter 7 (commencing with Section 4700) of Division 4.5, and as set forth in the court order.
(k)For a placement made on or after October 1, 2021, each temporary placement of the child pursuant to subdivision (h) in a short-term residential therapeutic program shall comply with the requirements of Section 4096 and be reviewed by the court pursuant to Section 361.22.
(l)(l)For a placement made on or after July 1, 2022, each temporary placement of the child pursuant to subdivision (h) in a community treatment facility shall comply with the requirements of Section 4096 and be reviewed by the court pursuant to Section 361.22.
SEC. 2.(a)Section 1.1 of this bill incorporates amendments to Section 319 of the Welfare and Institutions Code proposed by this bill and Assembly Bill 81. That section of this bill shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2024, (2) each bill amends Section 319 of the Welfare and Institutions Code, (3) Assembly Bill 448 is not enacted or as enacted does not amend that section, and (4) this bill is enacted after Assembly Bill 81, in which case Section 319 of the Welfare and Institutions Code, as amended by Assembly Bill 81, shall remain operative only until the operative date of this bill, at which time Section 1.1 of this bill shall become operative, and Sections 1, 1.2, and 1.3 of this bill shall not become operative.
(b)Section 1.2 of this bill incorporates amendments to Section 319 of the Welfare and Institutions Code proposed by both this bill and Assembly Bill 448. That section of this bill shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2024, (2) each bill amends Section 319 of the Welfare and Institutions Code, (3) Assembly Bill 81 is not enacted or as enacted does not amend that section, and (4) this bill is enacted after Assembly Bill 448, in which case Sections 1, 1.1, and 1.3 of this bill shall not become operative.
(c)Section 1.3 of this bill incorporates amendments to Section 319 of the Welfare and Institutions Code proposed by this bill, Assembly Bill 81, and Assembly Bill 448. That section of this bill shall only become operative if (1) all three bills are enacted and become effective on or before January 1, 2024, (2) all three bills amend Section 319 of the Welfare and Institutions Code, and (3) this bill is enacted after Assembly Bill 81 and Assembly Bill 448, in which case Section 319 of the Welfare and Institutions Code, as amended by Assembly Bill 81, shall remain operative only until the operative date of this bill, at which time Section 1.3 of this bill shall become operative, and Sections 1, 1.1, and 1.2 of this bill shall not become operative.
SEC. 2.SEC. 3.To the extent that this act has an overall effect of increasing the costs already borne by a local agency for programs or levels of service mandated by the 2011 Realignment Legislation within the meaning of Section 36 of Article XIII of the California Constitution, it shall apply to local agencies only to the extent that the state provides annual funding for the cost increase. Any new program or higher level of service provided by a local agency pursuant to this act above the level for which funding has been provided shall not require a subvention of funds by the state or otherwise be subject to Section 6 of Article XIIIB of the California Constitution.
(a)At the initial petition hearing, the court shall review the report described in subdivision (b) and examine the childs parents, guardians, Indian custodian, or other persons having relevant knowledge and hear the relevant evidence as the child, the childs parents or guardians, the childs Indian custodian, the petitioner, the Indian childs tribe, or their counsel desires to present. The court may examine the child, as provided in Section 350.
(b)The social worker shall report to the court on the reasons why the child has been removed from the parents, guardians, or Indian custodians physical custody, the need, if any, for continued detention, the available services and the referral methods to those services that could facilitate the return of the child to the custody of the childs parents, guardians, or Indian custodian, and whether there are any relatives who are able and willing to take temporary physical custody of the child. The report shall also include information regarding the short-term and long-term harms any short-term or long-term harms, or both short-term and long-term harms, to the child that may result from their removal from the custody of their parent, guardian, or Indian custodian, including, but not limited to, the information specified in subparagraph (A) of paragraph (2) of subdivision (c), the best placement option, options, including an assessment of the least disruptive alternatives to returning the child to the custody of their parent, guardian, or Indian custodian, and other including compliance with the placement preferences set forth in Section 361.31 in the case of an Indian child, and measures that may be taken available to alleviate disruption and minimize the harms of removal. If it is known or there is reason to know the child is an Indian child, the report shall also include all of the following:
(1)A statement of the risk of imminent physical damage or harm to the Indian child and any evidence that the emergency removal or placement continues to be necessary to prevent the imminent physical damage or harm to the child.
(2)The steps taken to provide notice to the childs parents, custodians, and tribe about the hearing pursuant to this section.
(3)If the childs parents and Indian custodians are unknown, a detailed explanation of what efforts have been made to locate and contact them, including contact with the appropriate Bureau of Indian Affairs regional director.
(4)The residence and the domicile of the Indian child.
(5)If either the residence or the domicile of the Indian child is believed to be on a reservation or in an Alaska Native village, the name of the tribe affiliated with that reservation or village.
(6)The tribal affiliation of the child and of the parents or Indian custodians.
(7)A specific and detailed account of the circumstances that caused the Indian child to be taken into temporary custody.
(8)If the child is believed to reside or be domiciled on a reservation in which the tribe exercises exclusive jurisdiction over child custody matters, a statement of efforts that have been made and that are being made to contact the tribe and transfer the child to the tribes jurisdiction.
(9)A statement of the efforts that have been taken to assist the parents or Indian custodians so the Indian child may safely be returned to their custody.
(10)The steps taken to consult and collaborate with the tribe and the outcome of that consultation. consultation and collaboration.
(c)(1)The court shall order the release of the child from custody unless a prima facie showing has been made that the child comes within Section 300, the court finds that continuance in the parents or guardians home is contrary to the childs welfare, and any of the following circumstances exist:
(A)There is a substantial danger to the physical health of the child or the child is suffering severe emotional damage, and there are no reasonable means by which the childs physical or emotional health may be protected without removing the child from the parents or guardians physical custody.
(B)There is substantial evidence that a parent, guardian, or custodian of the child is likely to flee the jurisdiction of the court, and, in the case of an Indian child, fleeing the jurisdiction will place the child at risk of imminent physical damage or harm.
(C)The child has left a placement in which the child was placed by the juvenile court.
(D)The child indicates an unwillingness to return home, if the child has been physically or sexually abused by a person residing in the home.
(2)(A)In determining whether continuance in the parents or guardians home is contrary to the childs welfare under paragraph (1), the court shall consider the short-term and long-term harms to the child that may result from the continued removal. In making this determination, the court shall review the social workers report and any other evidence in considering factors that include, but are not limited to, all of the following:(i)The childs perspective on removal and a description of the existing relationship between the child and their parents, guardians, or Indian custodians.(ii)The existing relationship between the child and other members of the household, including, but not limited to, siblings.(2)(A)The court shall determine whether less disruptive alternatives to removal were considered by the agency, such as factors related to the impact of removal on the child, including, but not limited to, the following:
(i)A description of the relationship between the child and their parents, guardians, or Indian custodians, based on the childs perspective, and the childs response to removal and, where developmentally appropriate, their perspective on removal.
(ii)The relationship between the child and any siblings.
(iii)The relationship between the child and other members of the household.
(iii)The(iv)Any disruption to the childs schooling, social relationships, and physical or emotional health that may result from placement out of the home, and in the case of an Indian child, the childs connection to their tribal community. any impact on the childs connection to their tribe, extended family members, and tribal community.
(B)If the court finds that removal is necessary under paragraph (1), the court shall, in a written order or on the record, set forth all of the following:
(i)The basis for its findings and the evidence relied on, including, if applicable, the social workers report. on.
(ii)The childs placement and the basis for determining that the placement is the most appropriate placement, and if there were less disruptive alternatives, why those alternatives were not selected for the child.(iii)Any other measures to be taken in order to alleviate disruption and minimize the harms of removal for the child.(ii)Its determination regarding the childs placement, including whether it complies with the placement preferences set forth in Section 361.31 and less disruptive alternatives.
(iii)Include any orders necessary to alleviate any disruption or harm to the child resulting from removal.
(C)Nothing in this paragraph permits a child to be released to a parent, legal guardian, or Indian custodian, or to be placed in an unsafe placement, due solely to the court determining the child was not offered less disruptive alternatives.
(d)If the court knows or there is reason to know the child is an Indian child, the court may only detain the Indian child if it also finds that detention is necessary to prevent imminent physical damage or harm. The court shall state on the record the facts supporting this finding.
(e)(1)If the hearing pursuant to this section is continued pursuant to Section 322 or for any other reason, the court shall find that the continuance of the child in the parents or guardians home is contrary to the childs welfare at the initial petition hearing or order the release of the child from custody.
(2)If the court knows or has reason to know the child is an Indian child, the hearing pursuant to this section may not be continued beyond 30 days unless the court finds all of the following:
(A)Restoring the child to the parent, parents, or Indian custodian would subject the child to imminent physical damage or harm.
(B)The court is unable to transfer the proceeding to the jurisdiction of the appropriate Indian tribe.
(C)It is not possible to initiate an Indian child custody proceeding as defined in Section 224.1.
(f)(1)The court shall also make a determination on the record, referencing the social workers report or other evidence relied upon, as to whether reasonable efforts were made to prevent or eliminate the need for removal of the child from their home, pursuant to subdivision (b) of Section 306, and whether there are available services that would prevent the need for further detention. Services to be considered for purposes of making this determination are case management, counseling, emergency shelter care, emergency in-home caretakers, out-of-home respite care, teaching and demonstrating homemakers, parenting training, transportation, and any other child welfare services authorized by the State Department of Social Services pursuant to Chapter 5 (commencing with Section 16500) of Part 4 of Division 9. The court shall also review whether the social worker has considered whether a referral to public assistance services pursuant to Chapter 2 (commencing with Section 11200) and Chapter 7 (commencing with Section 14000) of Part 3 of, Chapter 1 (commencing with Section 17000) of Part 5 of, and Chapter 10 (commencing with Section 18900) of Part 6 of, Division 9 would have eliminated the need to take temporary custody of the child or would prevent the need for further detention. This determination shall apply to each child individually, and the considerations shall be tailored to the individual child.
(2)If the court knows or has reason to know the child is an Indian child, the court shall also determine whether the county welfare department made active efforts to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian family. The court shall order the county welfare department to initiate or continue services or programs pending disposition pursuant to Section 358.
(3)If the child can be returned to the custody of their parent, guardian, or Indian custodian through the provision of those services, the court shall place the child with their parent, guardian, or Indian custodian and order that the services shall be provided. If the child cannot be returned to the physical custody of their parent or guardian, the court shall determine if there is a relative who is able and willing to care for the child, and has been assessed pursuant to Section 361.4.
(4)In order to preserve the bond between the child and the parent and to facilitate family reunification, the court shall consider whether the child can be returned to the custody of their parent who is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with their parent. The fact that the parent is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with their parent shall not be, for that reason alone, prima facie evidence of substantial danger. The court shall specify the factual basis for its conclusion that the return of the child to the custody of their parent would pose a substantial danger or would not pose a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child.
(g)If a court orders a child detained, the court shall state the facts on which the decision is based, specify why the initial removal was necessary, reference the social workers report or other evidence relied upon to make its determination whether continuance in the home of the parent or legal guardian is contrary to the childs welfare, order temporary placement and care of the child to be vested with the county child welfare department pending the hearing held pursuant to Section 355 or further order of the court, and order services to be provided as soon as possible to reunify the child and their family, if appropriate. The court shall also comply with subparagraph (B) of paragraph (2) of subdivision (c).
(h)(1)(A)If the child is not released from custody, the court may order the temporary placement of the child in any of the following for a period not to exceed 15 judicial days:
(i)The home of a relative, an extended family member, as defined in Section 224.1 and Section 1903 of the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.), or a nonrelative extended family member, as defined in Section 362.7, that has been assessed pursuant to Section 361.4.
(ii)The approved home of a resource family, as described in Section 16519.5, or a home licensed or approved by the Indian childs tribe.
(iii)An emergency shelter or other suitable licensed place.
(iv)A place exempt from licensure designated by the juvenile court.
(B)A youth homelessness prevention center licensed by the State Department of Social Services pursuant to Section 1502.35 of the Health and Safety Code shall not be a placement option pursuant to this section.
(C)If the court knows or has reason to know that the child is an Indian child, the Indian child shall be detained in a home that complies with the placement preferences set forth in Section 361.31 and in the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.), unless the court finds good cause exists pursuant to Section 361.31 not to follow the placement preferences. If the court finds good cause not to follow the placement preferences for detention, this finding does not affect the requirement that a diligent search be made for a subsequent placement within the placement preferences.
(2)Relatives shall be given preferential consideration for placement of the child. As used in this section, relative means an adult who is related to the child by blood, adoption, or affinity within the fifth degree of kinship, including stepparents, stepsiblings, and all relatives whose status is preceded by the words great, great-great, or grand, or the spouse of any of these persons, even if the marriage was terminated by death or dissolution.
(3)When placing in the home of a relative, an extended family member, as defined in Section 224.1 and Section 1903 of the federal Indian Child Welfare Act of 1978, or nonrelative extended family member, the court shall consider the recommendations of the social worker based on the assessment pursuant to Section 361.4 of the home of the relative, extended family member, or nonrelative extended family member, including the results of a criminal records check and prior child abuse allegations, if any, before ordering that the child be placed with a relative or nonrelative extended family member. The court may authorize the placement of a child on a temporary basis in the home of a relative, regardless of the status of any criminal record exemption or resource family approval, if the court finds that the placement does not pose a risk to the health and safety of the child. The court shall order the parent to disclose to the social worker the names, residences, and any known identifying information of any maternal or paternal relatives of the child. The social worker shall initiate the assessment pursuant to Section 361.3 of any relative to be considered for continuing placement.
(i)In the case of an Indian child, any order detaining the child pursuant to this section shall be considered an emergency removal within the meaning of Section 1922 of the federal Indian Child Welfare Act of 1978. The emergency proceeding shall terminate if the child is returned to the custody of the parent, parents, or Indian custodian, the child has been transferred to the custody and jurisdiction of the childs tribe, or the agency or another party to the proceeding recommends that the child be removed from the physical custody of their parent or parents or Indian custodian pursuant to Section 361 or 361.2.
(j)(1)At the initial hearing upon the petition filed in accordance with subdivision (c) of Rule 5.520 of the California Rules of Court or anytime thereafter up until the time that the minor is adjudged a dependent child of the court or a finding is made dismissing the petition, the court may temporarily limit the right of the parent or guardian to make educational or developmental services decisions for the child and temporarily appoint a responsible adult to make educational or developmental services decisions for the child if all of the following conditions are found:
(A)The parent or guardian is unavailable, unable, or unwilling to exercise educational or developmental services rights for the child.
(B)The county placing agency has made diligent efforts to locate and secure the participation of the parent or guardian in educational or developmental services decisionmaking.
(C)The childs educational and developmental services needs cannot be met without the temporary appointment of a responsible adult.
(2)If the court limits the parents educational rights under this subdivision, the court shall determine whether there is a responsible adult who is a relative, nonrelative extended family member, or other adult known to the child and who is available and willing to serve as the childs educational representative before appointing an educational representative or surrogate who is not known to the child.
(3)If the court cannot identify a responsible adult to make educational decisions for the child and the appointment of a surrogate parent, as defined in subdivision (a) of Section 56050 of the Education Code, is not warranted, the court may, with the input of any interested person, make educational decisions for the child. If the child is receiving services from a regional center, the provision of any developmental services related to the courts decision shall be consistent with the childs individual program plan and pursuant to the Lanterman Developmental Disabilities Services Act (Division 4.5 (commencing with Section 4500)). If the court cannot identify a responsible adult to make developmental services decisions for the child, the court may, with the input of any interested person, make developmental services decisions for the child. If the court makes educational or developmental services decisions for the child, the court shall also issue appropriate orders to ensure that every effort is made to identify a responsible adult to make future educational or developmental services decisions for the child.
(4)A temporary appointment of a responsible adult and temporary limitation on the right of the parent or guardian to make educational or developmental services decisions for the child shall be specifically addressed in the court order. An order made under this section shall expire at the conclusion of the hearing held pursuant to Section 361 or upon dismissal of the petition. Upon the entering of disposition orders, additional needed limitation on the parents or guardians educational or developmental services rights shall be addressed pursuant to Section 361.
(5)This section does not remove the obligation to appoint surrogate parents for students with disabilities who are without parental representation in special education procedures, as required by state and federal law, including Section 1415(b)(2) of Title 20 of the United States Code, Section 56050 of the Education Code, Section 7579.5 of the Government Code, and Rule 5.650 of the California Rules of Court.
(6)If the court appoints a developmental services decisionmaker pursuant to this section, the developmental services decisionmaker shall have the authority to access the childs information and records pursuant to subdivision (u) of Section 4514 and paragraph (23) of subdivision (a) of Section 5328, and to act on the childs behalf for the purposes of the individual program plan process pursuant to Sections 4646, 4646.5, and 4648 and the fair hearing process pursuant to Chapter 7 (commencing with Section 4700) of Division 4.5, and as set forth in the court order.
(k)For a placement made on or after October 1, 2021, each temporary placement of the child pursuant to subdivision (h) in a short-term residential therapeutic program shall comply with the requirements of Section 4096 and be reviewed by the court pursuant to Section 361.22.
(l)For a placement made on or after July 1, 2022, each temporary placement of the child pursuant to subdivision (h) in a community treatment facility shall comply with the requirements of Section 4096 and be reviewed by the court pursuant to Section 361.22.
SEC. 2.To the extent that this act has an overall effect of increasing the costs already borne by a local agency for programs or levels of service mandated by the 2011 Realignment Legislation within the meaning of Section 36 of Article XIII of the California Constitution, it shall apply to local agencies only to the extent that the state provides annual funding for the cost increase. Any new program or higher level of service provided by a local agency pursuant to this act above the level for which funding has been provided shall not require a subvention of funds by the state or otherwise be subject to Section 6 of Article XIIIB of the California Constitution.
(a)At the initial petition hearing, the court shall examine the childs parents, guardians, Indian custodian, or other persons having relevant knowledge and hear the relevant evidence as the child, the childs parents or guardians, the childs Indian custodian, the petitioner, the Indian childs tribe, or their counsel desires to present. The court may examine the child, as provided in Section 350.
(b)The social worker shall report to the court on the reasons why the child has been removed from the parents, guardians, or Indian custodians physical custody, the need, if any, for continued detention, the available services and the referral methods to those services that could facilitate the return of the child to the custody of the childs parents, guardians, or Indian custodian, and whether there are any relatives who are able and willing to take temporary physical custody of the child. The report shall also include information regarding the short-term and long-term harms to the child that may result from their removal from the custody of their parent, guardian, or Indian custodian, including, but not limited to, the information specified in subparagraph (A) of paragraph (2) of subdivision (c), the best placement option, including an assessment of the least disruptive alternatives to returning the child to the custody of their parent, guardian, or Indian custodian, and other measures that may be taken to alleviate disruption and minimize the harms of removal. If it is known or there is reason to know the child is an Indian child, the report shall also include all of the following:
(1)A statement of the risk of imminent physical damage or harm to the Indian child and any evidence that the emergency removal or placement continues to be necessary to prevent the imminent physical damage or harm to the child.
(2)The steps taken to provide notice to the childs parents, custodians, and tribe about the hearing pursuant to this section.
(3)If the childs parents and Indian custodians are unknown, a detailed explanation of what efforts have been made to locate and contact them, including contact with the appropriate Bureau of Indian Affairs regional director.
(4)The residence and the domicile of the Indian child.
(5)If either the residence or the domicile of the Indian child is believed to be on a reservation or in an Alaska Native village, the name of the tribe affiliated with that reservation or village.
(6)The tribal affiliation of the child and of the parents or Indian custodians.
(7)A specific and detailed account of the circumstances that caused the Indian child to be taken into temporary custody.
(8)If the child is believed to reside or be domiciled on a reservation in which the tribe exercises exclusive jurisdiction over child custody matters, a statement of efforts that have been made and that are being made to contact the tribe and transfer the child to the tribes jurisdiction.
(9)A statement of the efforts that have been taken to assist the parents or Indian custodians so the Indian child may safely be returned to their custody.
(10)The steps taken to consult with the tribe and the outcome of that consultation.
(c)(1)The court shall order the release of the child from custody unless a prima facie showing has been made that the child comes within Section 300, the court finds that continuance in the parents or guardians home is contrary to the childs welfare, and any of the following circumstances exist:
(A)There is a substantial danger to the physical health of the child or the child is suffering severe emotional damage, and there are no reasonable means by which the childs physical or emotional health may be protected without removing the child from the parents or guardians physical custody.
(B)There is substantial evidence that a parent, guardian, or custodian of the child is likely to flee the jurisdiction of the court, and, in the case of an Indian child, fleeing the jurisdiction will place the child at risk of imminent physical damage or harm.
(C)The child has left a placement in which the child was placed by the juvenile court.
(D)The child indicates an unwillingness to return home, if the child has been physically or sexually abused by a person residing in the home.
(2)(A)In determining whether continuance in the parents or guardians home is contrary to the childs welfare under paragraph (1), the court shall consider the short-term and long-term harms to the child that may result from the continued removal. In making this determination, the court shall review the social workers report and any other evidence in considering factors that include, but are not limited to, all of the following:
(i)The childs attitude towards removal and perspective on removal and a description of the existing relationship between the child and their parents, guardians, or Indian custodians.
(ii)The existing relationship between the child and other members of the household, including, but not limited to, siblings.
(iii)The disruption to the childs schooling, social relationships, and physical or emotional health that may result from placement out of the home. home, and in the case of an Indian child, the childs connection to their tribal community.
(B)If the court finds that removal is necessary under paragraph (1), the court shall, in a written order or on the record, set forth all of the following:
(i)The basis for its findings and the evidence relied on, including, if applicable, the social workers report.
(ii)The childs placement and the basis for determining that the placement is the least disruptive alternative most appropriate placement, and if there were less disruptive alternatives, why those alternatives were not selected for the child.
(iii)Any other measures to be taken in order to alleviate disruption and minimize the harms of removal for the child.
(d)If the court knows or there is reason to know the child is an Indian child, the court may only detain the Indian child if it also finds that detention is necessary to prevent imminent physical damage or harm. The court shall state on the record the facts supporting this finding.
(e)(1)If the hearing pursuant to this section is continued pursuant to Section 322 or for any other reason, the court shall find that the continuance of the child in the parents or guardians home is contrary to the childs welfare at the initial petition hearing or order the release of the child from custody.
(2)If the court knows or has reason to know the child is an Indian child, the hearing pursuant to this section may not be continued beyond 30 days unless the court finds all of the following:
(A)Restoring the child to the parent, parents, or Indian custodian would subject the child to imminent physical damage or harm.
(B)The court is unable to transfer the proceeding to the jurisdiction of the appropriate Indian tribe.
(C)It is not possible to initiate an Indian child custody proceeding as defined in Section 224.1.
(f)(1)The court shall also make a determination on the record, referencing the social workers report or other evidence relied upon, as to whether reasonable efforts were made to prevent or eliminate the need for removal of the child from their home, pursuant to subdivision (b) of Section 306, and whether there are available services that would prevent the need for further detention. Services to be considered for purposes of making this determination are case management, counseling, emergency shelter care, emergency in-home caretakers, out-of-home respite care, teaching and demonstrating homemakers, parenting training, transportation, and any other child welfare services authorized by the State Department of Social Services pursuant to Chapter 5 (commencing with Section 16500) of Part 4 of Division 9. The court shall also review whether the social worker has considered whether a referral to public assistance services pursuant to Chapter 2 (commencing with Section 11200) and Chapter 7 (commencing with Section 14000) of Part 3 of, Chapter 1 (commencing with Section 17000) of Part 5 of, and Chapter 10 (commencing with Section 18900) of Part 6 of, Division 9 would have eliminated the need to take temporary custody of the child or would prevent the need for further detention. This determination shall apply to each child individually, and the considerations shall be tailored to the individual child.
(2)If the court knows or has reason to know the child is an Indian child, the court shall also determine whether the county welfare department made active efforts to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian family. The court shall order the county welfare department to initiate or continue services or programs pending disposition pursuant to Section 358.
(3)If the child can be returned to the custody of their parent, guardian, or Indian custodian through the provision of those services, the court shall place the child with their parent, guardian, or Indian custodian and order that the services shall be provided. If the child cannot be returned to the physical custody of their parent or guardian, the court shall determine if there is a relative who is able and willing to care for the child, and has been assessed pursuant to Section 361.4.
(4)In order to preserve the bond between the child and the parent and to facilitate family reunification, the court shall consider whether the child can be returned to the custody of their parent who is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with their parent. The fact that the parent is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with their parent shall not be, for that reason alone, prima facie evidence of substantial danger. The court shall specify the factual basis for its conclusion that the return of the child to the custody of their parent would pose a substantial danger or would not pose a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child.
(g)If a court orders a child detained, the court shall state the facts on which the decision is based, specify why the initial removal was necessary, reference the social workers report or other evidence relied upon to make its determination whether continuance in the home of the parent or legal guardian is contrary to the childs welfare, order temporary placement and care of the child to be vested with the county child welfare department pending the hearing held pursuant to Section 355 or further order of the court, and order services to be provided as soon as possible to reunify the child and their family, if appropriate. The court shall also comply with subparagraph (B) of paragraph (2) of subdivision (c).
(h)(1)(A)If the child is not released from custody, the court may order the temporary placement of the child in any of the following for a period not to exceed 15 judicial days:
(i)The home of a relative, an extended family member, as defined in Section 224.1 and Section 1903 of the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.), or a nonrelative extended family member, as defined in Section 362.7, that has been assessed pursuant to Section 361.4.
(ii)The approved home of a resource family, as defined described in Section 16519.5, or a home licensed or approved by the Indian childs tribe.
(iii)An emergency shelter or other suitable licensed place.
(iv)A place exempt from licensure designated by the juvenile court.
(B)A youth homelessness prevention center licensed by the State Department of Social Services pursuant to Section 1502.35 of the Health and Safety Code shall not be a placement option pursuant to this section.
(C)If the court knows or has reason to know that the child is an Indian child, the Indian child shall be detained in a home that complies with the placement preferences set forth in Section 361.31 and in the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.), unless the court finds good cause exists pursuant to Section 361.31 not to follow the placement preferences. If the court finds good cause not to follow the placement preferences for detention, this finding does not affect the requirement that a diligent search be made for a subsequent placement within the placement preferences.
(2)Relatives shall be given preferential consideration for placement of the child. As used in this section, relative means an adult who is related to the child by blood, adoption, or affinity within the fifth degree of kinship, including stepparents, stepsiblings, and all relatives whose status is preceded by the words great, great-great, or grand, or the spouse of any of these persons, even if the marriage was terminated by death or dissolution.
(3)When placing in the home of a relative, an extended family member, as defined in Section 224.1 and Section 1903 of the federal Indian Child Welfare Act of 1978, or nonrelative extended family member, the court shall consider the recommendations of the social worker based on the assessment pursuant to Section 361.4 of the home of the relative, extended family member, or nonrelative extended family member, including the results of a criminal records check and prior child abuse allegations, if any, before ordering that the child be placed with a relative or nonrelative extended family member. The court may authorize the placement of a child on a temporary basis in the home of a relative, regardless of the status of any criminal record exemption or resource family approval, if the court finds that the placement does not pose a risk to the health and safety of the child. The court shall order the parent to disclose to the social worker the names, residences, and any known identifying information of any maternal or paternal relatives of the child. The social worker shall initiate the assessment pursuant to Section 361.3 of any relative to be considered for continuing placement.
(i)In the case of an Indian child, any order detaining the child pursuant to this section shall be considered an emergency removal within the meaning of Section 1922 of the federal Indian Child Welfare Act of 1978. The emergency proceeding shall terminate if the child is returned to the custody of the parent, parents, or Indian custodian, the child has been transferred to the custody and jurisdiction of the childs tribe, or the agency or another party to the proceeding recommends that the child be removed from the physical custody of their parent or parents or Indian custodian pursuant to Section 361 or 361.2.
(j)(1)At the initial hearing upon the petition filed in accordance with subdivision (c) of Rule 5.520 of the California Rules of Court or anytime thereafter up until the time that the minor is adjudged a dependent child of the court or a finding is made dismissing the petition, the court may temporarily limit the right of the parent or guardian to make educational or developmental services decisions for the child and temporarily appoint a responsible adult to make educational or developmental services decisions for the child if all of the following conditions are found:
(A)The parent or guardian is unavailable, unable, or unwilling to exercise educational or developmental services rights for the child.
(B)The county placing agency has made diligent efforts to locate and secure the participation of the parent or guardian in educational or developmental services decisionmaking.
(C)The childs educational and developmental services needs cannot be met without the temporary appointment of a responsible adult.
(2)If the court limits the parents educational rights under this subdivision, the court shall determine whether there is a responsible adult who is a relative, nonrelative extended family member, or other adult known to the child and who is available and willing to serve as the childs educational representative before appointing an educational representative or surrogate who is not known to the child.
(3)If the court cannot identify a responsible adult to make educational decisions for the child and the appointment of a surrogate parent, as defined in subdivision (a) of Section 56050 of the Education Code, is not warranted, the court may, with the input of any interested person, make educational decisions for the child. If the child is receiving services from a regional center, the provision of any developmental services related to the courts decision shall be consistent with the childs individual program plan and pursuant to the Lanterman Developmental Disabilities Services Act (Division 4.5 (commencing with Section 4500)). If the court cannot identify a responsible adult to make developmental services decisions for the child, the court may, with the input of any interested person, make developmental services decisions for the child. If the court makes educational or developmental services decisions for the child, the court shall also issue appropriate orders to ensure that every effort is made to identify a responsible adult to make future educational or developmental services decisions for the child.
(4)A temporary appointment of a responsible adult and temporary limitation on the right of the parent or guardian to make educational or developmental services decisions for the child shall be specifically addressed in the court order. An order made under this section shall expire at the conclusion of the hearing held pursuant to Section 361 or upon dismissal of the petition. Upon the entering of disposition orders, additional needed limitation on the parents or guardians educational or developmental services rights shall be addressed pursuant to Section 361.
(5)This section does not remove the obligation to appoint surrogate parents for students with disabilities who are without parental representation in special education procedures, as required by state and federal law, including Section 1415(b)(2) of Title 20 of the United States Code, Section 56050 of the Education Code, Section 7579.5 of the Government Code, and Rule 5.650 of the California Rules of Court.
(6)If the court appoints a developmental services decisionmaker pursuant to this section, the developmental services decisionmaker shall have the authority to access the childs information and records pursuant to subdivision (u) of Section 4514 and paragraph (23) of subdivision (a) of Section 5328, and to act on the childs behalf for the purposes of the individual program plan process pursuant to Sections 4646, 4646.5, and 4648 and the fair hearing process pursuant to Chapter 7 (commencing with Section 4700) of Division 4.5, and as set forth in the court order.
(k)For a placement made on or after October 1, 2021, each temporary placement of the child pursuant to subdivision (h) in a short-term residential therapeutic program shall comply with the requirements of Section 4096 and be reviewed by the court pursuant to Section 361.22.
(l)For a placement made on or after July 1, 2022, each temporary placement of the child pursuant to subdivision (h) in a community treatment facility shall comply with the requirements of Section 4096 and be reviewed by the court pursuant to Section 361.22.
SEC. 2.To the extent that this act has an overall effect of increasing the costs already borne by a local agency for programs or levels of service mandated by the 2011 Realignment Legislation within the meaning of Section 36 of Article XIII of the California Constitution, it shall apply to local agencies only to the extent that the state provides annual funding for the cost increase. Any new program or higher level of service provided by a local agency pursuant to this act above the level for which funding has been provided shall not require a subvention of funds by the state or otherwise be subject to Section 6 of Article XIIIB of the California Constitution.
(a)At the initial petition hearing, the court shall examine the childs parents, guardians, Indian custodian, or other persons having relevant knowledge and hear the relevant evidence as the child, the childs parents or guardians, the childs Indian custodian, the petitioner, the Indian childs tribe, or their counsel desires to present. The court may examine the child, as provided in Section 350.
(b)The social worker shall report to the court on the reasons why the child has been removed from the parents, guardians, or Indian custodians physical custody, the need, if any, for continued detention, the available services and the referral methods to those services that could facilitate the return of the child to the custody of the childs parents, guardians, or Indian custodian, and whether there are any relatives who are able and willing to take temporary physical custody of the child. The report shall also include information regarding the short-term and long-term harms to the child that may result from their removal from the custody of their parent, guardian, or Indian custodian, including, but not limited to, the information specified in subparagraph (A) of paragraph (2) of subdivision (c), and measures to alleviate the disruption and minimize the harms of removal with the least disruptive alternatives. the least disruptive alternatives to returning the child to the custody of their parent, guardian, or Indian custodian, and other measures that may be taken to alleviate disruption and minimize the harms of removal. If it is known or there is reason to know the child is an Indian child, the report shall also include all of the following:
(1)A statement of the risk of imminent physical damage or harm to the Indian child and any evidence that the emergency removal or placement continues to be necessary to prevent the imminent physical damage or harm to the child.
(2)The steps taken to provide notice to the childs parents, custodians, and tribe about the hearing pursuant to this section.
(3)If the childs parents and Indian custodians are unknown, a detailed explanation of what efforts have been made to locate and contact them, including contact with the appropriate Bureau of Indian Affairs regional director.
(4)The residence and the domicile of the Indian child.
(5)If either the residence or the domicile of the Indian child is believed to be on a reservation or in an Alaska Native village, the name of the tribe affiliated with that reservation or village.
(6)The tribal affiliation of the child and of the parents or Indian custodians.
(7)A specific and detailed account of the circumstances that caused the Indian child to be taken into temporary custody.
(8)If the child is believed to reside or be domiciled on a reservation in which the tribe exercises exclusive jurisdiction over child custody matters, a statement of efforts that have been made and that are being made to contact the tribe and transfer the child to the tribes jurisdiction.
(9)A statement of the efforts that have been taken to assist the parents or Indian custodians so the Indian child may safely be returned to their custody.
(10)The steps taken to consult with the tribe and the outcome of that consultation.
(c)(1)The court shall order the release of the child from custody unless a prima facie showing has been made that the child comes within Section 300, the court finds that continuance in the parents or guardians home is contrary to the childs welfare, and any of the following circumstances exist:
(A)There is a substantial danger to the physical health of the child or the child is suffering severe emotional damage, and there are no reasonable means by which the childs physical or emotional health may be protected without removing the child from the parents or guardians physical custody.
(B)There is substantial evidence that a parent, guardian, or custodian of the child is likely to flee the jurisdiction of the court, and, in the case of an Indian child, fleeing the jurisdiction will place the child at risk of imminent physical damage or harm.
(C)The child has left a placement in which the child was placed by the juvenile court.
(D)The child indicates an unwillingness to return home, if the child has been physically or sexually abused by a person residing in the home.
(2)(A)In determining whether continuance in the parents or guardians home is contrary to the childs welfare under paragraph (1), the court shall consider the short-term and long-term harms to the child that may result from the continued removal. In making this determination, the court shall review the social workers report and any other evidence in considering factors that include, but are not limited to, all of the following:
(i)The childs attitude towards removal and the existing relationship between the child and their parents, guardians, or Indian custodians.
(ii)The existing relationship between the child and other members of the household, including, but not limited to, siblings.
(iii)The disruption to the childs schooling, social relationships, and physical or emotional health that may result from placement out of the home.
(B)If the court finds that removal is necessary under paragraph (1), the court shall make a determination of its findings, referencing the social workers report and other evidence relied upon, and specify the measures to be taken to alleviate the disruption and minimize the harms of removal with the least disruptive alternatives in a written order or on the record. shall, in a written order or on the record, set forth all of the following:
(i)The basis for its findings and the evidence relied on, including, if applicable, the social workers report.
(ii)The childs placement and the basis for determining that the placement is the least disruptive alternative for the child.
(iii)Any other measures to be taken in order to alleviate disruption and minimize the harms of removal for the child.
(d)If the court knows or there is reason to know the child is an Indian child, the court may only detain the Indian child if it also finds that detention is necessary to prevent imminent physical damage or harm. The court shall state on the record the facts supporting this finding.
(e)(1)If the hearing pursuant to this section is continued pursuant to Section 322 or for any other reason, the court shall find that the continuance of the child in the parents or guardians home is contrary to the childs welfare at the initial petition hearing or order the release of the child from custody.
(2)If the court knows or has reason to know the child is an Indian child, the hearing pursuant to this section may not be continued beyond 30 days unless the court finds all of the following:
(A)Restoring the child to the parent, parents, or Indian custodian would subject the child to imminent physical damage or harm.
(B)The court is unable to transfer the proceeding to the jurisdiction of the appropriate Indian tribe.
(C)It is not possible to initiate an Indian child custody proceeding as defined in Section 224.1.
(f)(1)The court shall also make a determination on the record, referencing the social workers report or other evidence relied upon, as to whether reasonable efforts were made to prevent or eliminate the need for removal of the child from their home, pursuant to subdivision (b) of Section 306, and whether there are available services that would prevent the need for further detention. Services to be considered for purposes of making this determination are case management, counseling, emergency shelter care, emergency in-home caretakers, out-of-home respite care, teaching and demonstrating homemakers, parenting training, transportation, and any other child welfare services authorized by the State Department of Social Services pursuant to Chapter 5 (commencing with Section 16500) of Part 4 of Division 9. The court shall also review whether the social worker has considered whether a referral to public assistance services pursuant to Chapter 2 (commencing with Section 11200) and Chapter 7 (commencing with Section 14000) of Part 3 of, Chapter 1 (commencing with Section 17000) of Part 5 of, and Chapter 10 (commencing with Section 18900) of Part 6 of, Division 9 would have eliminated the need to take temporary custody of the child or would prevent the need for further detention.
(2)If the court knows or has reason to know the child is an Indian child, the court shall also determine whether the county welfare department made active efforts to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian family. The court shall order the county welfare department to initiate or continue services or programs pending disposition pursuant to Section 358.
(3)If the child can be returned to the custody of their parent, guardian, or Indian custodian through the provision of those services, the court shall place the child with their parent, guardian, or Indian custodian and order that the services shall be provided. If the child cannot be returned to the physical custody of their parent or guardian, the court shall determine if there is a relative who is able and willing to care for the child, and has been assessed pursuant to Section 361.4.
(4)In order to preserve the bond between the child and the parent and to facilitate family reunification, the court shall consider whether the child can be returned to the custody of their parent who is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with their parent. The fact that the parent is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with their parent shall not be, for that reason alone, prima facie evidence of substantial danger. The court shall specify the factual basis for its conclusion that the return of the child to the custody of their parent would pose a substantial danger or would not pose a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child.
(g)If a court orders a child detained, the court shall state the facts on which the decision is based, specify why the initial removal was necessary, reference the social workers report or other evidence relied upon to make its determination whether continuance in the home of the parent or legal guardian is contrary to the childs welfare, order temporary placement and care of the child to be vested with the county child welfare department pending the hearing held pursuant to Section 355 or further order of the court, and order services to be provided as soon as possible to reunify the child and their family, if appropriate. The court shall also comply with subparagraph (B) of paragraph (2) of subdivision (c).
(h)(1)(A)If the child is not released from custody, the court may order the temporary placement of the child in any of the following for a period not to exceed 15 judicial days:
(i)The home of a relative, an extended family member, as defined in Section 224.1 and Section 1903 of the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.), or a nonrelative extended family member, as defined in Section 362.7, that has been assessed pursuant to Section 361.4.
(ii)The approved home of a resource family, as defined in Section 16519.5, or a home licensed or approved by the Indian childs tribe.
(iii)An emergency shelter or other suitable licensed place.
(iv)A place exempt from licensure designated by the juvenile court.
(B)A youth homelessness prevention center licensed by the State Department of Social Services pursuant to Section 1502.35 of the Health and Safety Code shall not be a placement option pursuant to this section.
(C)If the court knows or has reason to know that the child is an Indian child, the Indian child shall be detained in a home that complies with the placement preferences set forth in Section 361.31 and in the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.), unless the court finds good cause exists pursuant to Section 361.31 not to follow the placement preferences. If the court finds good cause not to follow the placement preferences for detention, this finding does not affect the requirement that a diligent search be made for a subsequent placement within the placement preferences.
(2)Relatives shall be given preferential consideration for placement of the child. As used in this section, relative means an adult who is related to the child by blood, adoption, or affinity within the fifth degree of kinship, including stepparents, stepsiblings, and all relatives whose status is preceded by the words great, great-great, or grand, or the spouse of any of these persons, even if the marriage was terminated by death or dissolution.
(3)When placing in the home of a relative, an extended family member, as defined in Section 224.1 and Section 1903 of the federal Indian Child Welfare Act of 1978, or nonrelative extended family member, the court shall consider the recommendations of the social worker based on the assessment pursuant to Section 361.4 of the home of the relative, extended family member, or nonrelative extended family member, including the results of a criminal records check and prior child abuse allegations, if any, before ordering that the child be placed with a relative or nonrelative extended family member. The court may authorize the placement of a child on temporary basis in the home of a relative, regardless of the status of any criminal record exemption or resource family approval, if the court finds that the placement does not pose a risk to the health and safety of the child. The court shall order the parent to disclose to the social worker the names, residences, and any known identifying information of any maternal or paternal relatives of the child. The social worker shall initiate the assessment pursuant to Section 361.3 of any relative to be considered for continuing placement.
(i)In the case of an Indian child, any order detaining the child pursuant to this section shall be considered an emergency removal within the meaning of Section 1922 of the federal Indian Child Welfare Act of 1978. The emergency proceeding shall terminate if the child is returned to the custody of the parent, parents, or Indian custodian, the child has been transferred to the custody and jurisdiction of the childs tribe, or the agency or another party to the proceeding recommends that the child be removed from the physical custody of their parent or parents or Indian custodian pursuant to Section 361 or 361.2.
(j)(1)At the initial hearing upon the petition filed in accordance with subdivision (c) of Rule 5.520 of the California Rules of Court or anytime thereafter up until the time that the minor is adjudged a dependent child of the court or a finding is made dismissing the petition, the court may temporarily limit the right of the parent or guardian to make educational or developmental services decisions for the child and temporarily appoint a responsible adult to make educational or developmental services decisions for the child if all of the following conditions are found:
(A)The parent or guardian is unavailable, unable, or unwilling to exercise educational or developmental services rights for the child.
(B)The county placing agency has made diligent efforts to locate and secure the participation of the parent or guardian in educational or developmental services decisionmaking.
(C)The childs educational and developmental services needs cannot be met without the temporary appointment of a responsible adult.
(2)If the court limits the parents educational rights under this subdivision, the court shall determine whether there is a responsible adult who is a relative, nonrelative extended family member, or other adult known to the child and who is available and willing to serve as the childs educational representative before appointing an educational representative or surrogate who is not known to the child.
(3)If the court cannot identify a responsible adult to make educational decisions for the child and the appointment of a surrogate parent, as defined in subdivision (a) of Section 56050 of the Education Code, is not warranted, the court may, with the input of any interested person, make educational decisions for the child. If the child is receiving services from a regional center, the provision of any developmental services related to the courts decision shall be consistent with the childs individual program plan and pursuant to the Lanterman Developmental Disabilities Services Act (Division 4.5 (commencing with Section 4500)). If the court cannot identify a responsible adult to make developmental services decisions for the child, the court may, with the input of any interested person, make developmental services decisions for the child. If the court makes educational or developmental services decisions for the child, the court shall also issue appropriate orders to ensure that every effort is made to identify a responsible adult to make future educational or developmental services decisions for the child.
(4)A temporary appointment of a responsible adult and temporary limitation on the right of the parent or guardian to make educational or developmental services decisions for the child shall be specifically addressed in the court order. An order made under this section shall expire at the conclusion of the hearing held pursuant to Section 361 or upon dismissal of the petition. Upon the entering of disposition orders, additional needed limitation on the parents or guardians educational or developmental services rights shall be addressed pursuant to Section 361.
(5)This section does not remove the obligation to appoint surrogate parents for students with disabilities who are without parental representation in special education procedures, as required by state and federal law, including Section 1415(b)(2) of Title 20 of the United States Code, Section 56050 of the Education Code, Section 7579.5 of the Government Code, and Rule 5.650 of the California Rules of Court.
(6)If the court appoints a developmental services decisionmaker pursuant to this section, the developmental services decisionmaker shall have the authority to access the childs information and records pursuant to subdivision (u) of Section 4514 and paragraph (23) of subdivision (a) of Section 5328, and to act on the childs behalf for the purposes of the individual program plan process pursuant to Sections 4646, 4646.5, and 4648 and the fair hearing process pursuant to Chapter 7 (commencing with Section 4700) of Division 4.5, and as set forth in the court order.
(k)For a placement made on or after October 1, 2021, each temporary placement of the child pursuant to subdivision (h) in a short-term residential therapeutic program shall comply with the requirements of Section 4096 and be reviewed by the court pursuant to Section 361.22.
(l)For a placement made on or after July 1, 2022, each temporary placement of the child pursuant to subdivision (h) in a community treatment facility shall comply with the requirements of Section 4096 and be reviewed by the court pursuant to Section 361.22.
SEC. 2.To the extent that this act has an overall effect of increasing the costs already borne by a local agency for programs or levels of service mandated by the 2011 Realignment Legislation within the meaning of Section 36 of Article XIII of the California Constitution, it shall apply to local agencies only to the extent that the state provides annual funding for the cost increase. Any new program or higher level of service provided by a local agency pursuant to this act above the level for which funding has been provided shall not require a subvention of funds by the state or otherwise be subject to Section 6 of Article XIIIB of the California Constitution.
(a)At the initial petition hearing, the court shall examine the childs parents, guardians, Indian custodian, or other persons having relevant knowledge and hear the relevant evidence as the child, the childs parents or guardians, the childs Indian custodian, the petitioner, the Indian childs tribe, or their counsel desires to present. The court may examine the child, as provided in Section 350.
(b)The social worker shall report to the court on the reasons why the child has been removed from the parents, guardians, or Indian custodians physical custody, the need, if any, for continued detention, the available services and the referral methods to those services that could facilitate the return of the child to the custody of the childs parents, guardians, or Indian custodian, and whether there are any relatives who are able and willing to take temporary physical custody of the child. The report shall also include information regarding the short-term and long-term harms to the child that may result from their removal from the custody of their parent, guardian, or Indian custodian, including, but not limited to, the information specified in subparagraph (A) of paragraph (2) of subdivision (c), and measures to alleviate the disruption and minimize the harms of removal with the least disruptive alternatives. If it is known or there is reason to know the child is an Indian child, the report shall also include all of the following:
(1)A statement of the risk of imminent physical damage or harm to the Indian child and any evidence that the emergency removal or placement continues to be necessary to prevent the imminent physical damage or harm to the child.
(2)The steps taken to provide notice to the childs parents, custodians, and tribe about the hearing pursuant to this section.
(3)If the childs parents and Indian custodians are unknown, a detailed explanation of what efforts have been made to locate and contact them, including contact with the appropriate Bureau of Indian Affairs regional director.
(4)The residence and the domicile of the Indian child.
(5)If either the residence or the domicile of the Indian child is believed to be on a reservation or in an Alaska Native village, the name of the tribe affiliated with that reservation or village.
(6)The tribal affiliation of the child and of the parents or Indian custodians.
(7)A specific and detailed account of the circumstances that caused the Indian child to be taken into temporary custody.
(8)If the child is believed to reside or be domiciled on a reservation in which the tribe exercises exclusive jurisdiction over child custody matters, a statement of efforts that have been made and that are being made to contact the tribe and transfer the child to the tribes jurisdiction.
(9)A statement of the efforts that have been taken to assist the parents or Indian custodians so the Indian child may safely be returned to their custody.
(10)The steps taken to consult with the tribe and the outcome of that consultation.
(c)(1)The court shall order the release of the child from custody unless a prima facie showing has been made that the child comes within Section 300, the court finds that continuance in the parents or guardians home is contrary to the childs welfare, and any of the following circumstances exist:
(1)(A)There is a substantial danger to the physical health of the child or the child is suffering severe emotional damage, and there are no reasonable means by which the childs physical or emotional health may be protected without removing the child from the parents or guardians physical custody.
(2)(B)There is substantial evidence that a parent, guardian, or custodian of the child is likely to flee the jurisdiction of the court, and, in the case of an Indian child, fleeing the jurisdiction will place the child at risk of imminent physical damage or harm.
(3)(C)The child has left a placement in which the child was placed by the juvenile court.
(4)(D)The child indicates an unwillingness to return home, if the child has been physically or sexually abused by a person residing in the home.
(2)(A)In determining whether continuance in the parents or guardians home is contrary to the childs welfare under paragraph (1), the court shall consider the short-term and long-term harms to the child that may result from the continued removal. In making this determination, the court shall review the social workers report and any other evidence in considering factors that include, but are not limited to, all of the following:
(i)The childs attitude towards removal and the existing relationship between the child and their parents, guardians, or Indian custodians.
(ii)The existing relationship between the child and other members of the household, including, but not limited to, siblings.
(iii)The disruption to the childs schooling, social relationships, and physical or emotional health that may result from placement out of the home.
(B)If the court finds that removal is necessary under paragraph (1), the court shall make a determination of its findings, referencing the social workers report and other evidence relied upon, and specify the measures to be taken to alleviate the disruption and minimize the harms of removal with the least disruptive alternatives in a written order or on the record.
(d)If the court knows or there is reason to know the child is an Indian child, the court may only detain the Indian child if it also finds that detention is necessary to prevent imminent physical damage or harm. The court shall state on the record the facts supporting this finding.
(e)(1)If the hearing pursuant to this section is continued pursuant to Section 322 or for any other reason, the court shall find that the continuance of the child in the parents or guardians home is contrary to the childs welfare at the initial petition hearing or order the release of the child from custody.
(2)If the court knows or has reason to know the child is an Indian child, the hearing pursuant to this section may not be continued beyond 30 days unless the court finds all of the following:
(A)Restoring the child to the parent, parents, or Indian custodian would subject the child to imminent physical damage or harm.
(B)The court is unable to transfer the proceeding to the jurisdiction of the appropriate Indian tribe.
(C)It is not possible to initiate an Indian child custody proceeding as defined in Section 224.1.
(f)(1)The court shall also make a determination on the record, referencing the social workers report or other evidence relied upon, as to whether reasonable efforts were made to prevent or eliminate the need for removal of the child from their home, pursuant to subdivision (b) of Section 306, and whether there are available services that would prevent the need for further detention. Services to be considered for purposes of making this determination are case management, counseling, emergency shelter care, emergency in-home caretakers, out-of-home respite care, teaching and demonstrating homemakers, parenting training, transportation, and any other child welfare services authorized by the State Department of Social Services pursuant to Chapter 5 (commencing with Section 16500) of Part 4 of Division 9. The court shall also review whether the social worker has considered whether a referral to public assistance services pursuant to Chapter 2 (commencing with Section 11200) and Chapter 7 (commencing with Section 14000) of Part 3 of, Chapter 1 (commencing with Section 17000) of Part 5 of, and Chapter 10 (commencing with Section 18900) of Part 6 of, Division 9 would have eliminated the need to take temporary custody of the child or would prevent the need for further detention.
(2)If the court knows or has reason to know the child is an Indian child, the court shall also determine whether the county welfare department made active efforts to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian family. The court shall order the county welfare department to initiate or continue services or programs pending disposition pursuant to Section 358.
(3)If the child can be returned to the custody of their parent, guardian, or Indian custodian through the provision of those services, the court shall place the child with their parent, guardian, or Indian custodian and order that the services shall be provided. If the child cannot be returned to the physical custody of their parent or guardian, the court shall determine if there is a relative who is able and willing to care for the child, and has been assessed pursuant to Section 361.4.
(4)In order to preserve the bond between the child and the parent and to facilitate family reunification, the court shall consider whether the child can be returned to the custody of their parent who is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with their parent. The fact that the parent is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with their parent shall not be, for that reason alone, prima facie evidence of substantial danger. The court shall specify the factual basis for its conclusion that the return of the child to the custody of their parent would pose a substantial danger or would not pose a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child.
(5)(A)In making the determination on whether to remove the child from their parent, guardian, or Indian custodian, the court shall consider any likely harm to the child that may result from their removal by considering all of the following factors:(i)The childs attitude towards removal, ties to the parent, guardian, or Indian custodian, and relationships with other members of the household.(ii)The disruption to the childs schooling and social relationships that may result from placement out of the neighborhood.(iii)Any measures that can be taken to alleviate the disruption specified in clause (ii).(B)Any predisposition reports prepared by the social worker shall contain information regarding any likely harm the child may suffer because of the removal from their parent, guardian, or Indian custodian and list recommended steps to be taken to minimize this harm.(g)If a court orders a child detained, the court shall state the facts on which the decision is based, specify why the initial removal was necessary, reference the social workers report or other evidence relied upon to make its determination whether continuance in the home of the parent or legal guardian is contrary to the childs welfare, order temporary placement and care of the child to be vested with the county child welfare department pending the hearing held pursuant to Section 355 or further order of the court, and order services to be provided as soon as possible to reunify the child and their family, if appropriate.
(h)(1)(A)If the child is not released from custody, the court may order the temporary placement of the child in any of the following for a period not to exceed 15 judicial days:
(i)The home of a relative, an extended family member, as defined in Section 224.1 and Section 1903 of the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.), or a nonrelative extended family member, as defined in Section 362.7, that has been assessed pursuant to Section 361.4.
(ii)The approved home of a resource family, as defined in Section 16519.5, or a home licensed or approved by the Indian childs tribe.
(iii)An emergency shelter or other suitable licensed place.
(iv)A place exempt from licensure designated by the juvenile court.
(B)A youth homelessness prevention center licensed by the State Department of Social Services pursuant to Section 1502.35 of the Health and Safety Code shall not be a placement option pursuant to this section.
(C)If the court knows or has reason to know that the child is an Indian child, the Indian child shall be detained in a home that complies with the placement preferences set forth in Section 361.31 and in the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.), unless the court finds good cause exists pursuant to Section 361.31 not to follow the placement preferences. If the court finds good cause not to follow the placement preferences for detention, this finding does not affect the requirement that a diligent search be made for a subsequent placement within the placement preferences.
(2)Relatives shall be given preferential consideration for placement of the child. As used in this section, relative means an adult who is related to the child by blood, adoption, or affinity within the fifth degree of kinship, including stepparents, stepsiblings, and all relatives whose status is preceded by the words great, great-great, or grand, or the spouse of any of these persons, even if the marriage was terminated by death or dissolution.
(3)When placing in the home of a relative, an extended family member, as defined in Section 224.1 and Section 1903 of the federal Indian Child Welfare Act of 1978, or nonrelative extended family member, the court shall consider the recommendations of the social worker based on the assessment pursuant to Section 361.4 of the home of the relative, extended family member, or nonrelative extended family member, including the results of a criminal records check and prior child abuse allegations, if any, before ordering that the child be placed with a relative or nonrelative extended family member. The court may authorize the placement of a child on temporary basis in the home of a relative, regardless of the status of any criminal record exemption or resource family approval, if the court finds that the placement does not pose a risk to the health and safety of the child. The court shall order the parent to disclose to the social worker the names, residences, and any known identifying information of any maternal or paternal relatives of the child. The social worker shall initiate the assessment pursuant to Section 361.3 of any relative to be considered for continuing placement.
(i)In the case of an Indian child, any order detaining the child pursuant to this section shall be considered an emergency removal within the meaning of Section 1922 of the federal Indian Child Welfare Act of 1978. The emergency proceeding shall terminate if the child is returned to the custody of the parent, parents, or Indian custodian, the child has been transferred to the custody and jurisdiction of the childs tribe, or the agency or another party to the proceeding recommends that the child be removed from the physical custody of their parent or parents or Indian custodian pursuant to Section 361 or 361.2.
(j)(1)At the initial hearing upon the petition filed in accordance with subdivision (c) of Rule 5.520 of the California Rules of Court or anytime thereafter up until the time that the minor is adjudged a dependent child of the court or a finding is made dismissing the petition, the court may temporarily limit the right of the parent or guardian to make educational or developmental services decisions for the child and temporarily appoint a responsible adult to make educational or developmental services decisions for the child if all of the following conditions are found:
(A)The parent or guardian is unavailable, unable, or unwilling to exercise educational or developmental services rights for the child.
(B)The county placing agency has made diligent efforts to locate and secure the participation of the parent or guardian in educational or developmental services decisionmaking.
(C)The childs educational and developmental services needs cannot be met without the temporary appointment of a responsible adult.
(2)If the court limits the parents educational rights under this subdivision, the court shall determine whether there is a responsible adult who is a relative, nonrelative extended family member, or other adult known to the child and who is available and willing to serve as the childs educational representative before appointing an educational representative or surrogate who is not known to the child.
(3)If the court cannot identify a responsible adult to make educational decisions for the child and the appointment of a surrogate parent, as defined in subdivision (a) of Section 56050 of the Education Code, is not warranted, the court may, with the input of any interested person, make educational decisions for the child. If the child is receiving services from a regional center, the provision of any developmental services related to the courts decision shall be consistent with the childs individual program plan and pursuant to the Lanterman Developmental Disabilities Services Act (Division 4.5 (commencing with Section 4500)). If the court cannot identify a responsible adult to make developmental services decisions for the child, the court may, with the input of any interested person, make developmental services decisions for the child. If the court makes educational or developmental services decisions for the child, the court shall also issue appropriate orders to ensure that every effort is made to identify a responsible adult to make future educational or developmental services decisions for the child.
(4)A temporary appointment of a responsible adult and temporary limitation on the right of the parent or guardian to make educational or developmental services decisions for the child shall be specifically addressed in the court order. An order made under this section shall expire at the conclusion of the hearing held pursuant to Section 361 or upon dismissal of the petition. Upon the entering of disposition orders, additional needed limitation on the parents or guardians educational or developmental services rights shall be addressed pursuant to Section 361.
(5)This section does not remove the obligation to appoint surrogate parents for students with disabilities who are without parental representation in special education procedures, as required by state and federal law, including Section 1415(b)(2) of Title 20 of the United States Code, Section 56050 of the Education Code, Section 7579.5 of the Government Code, and Rule 5.650 of the California Rules of Court.
(6)If the court appoints a developmental services decisionmaker pursuant to this section, the developmental services decisionmaker shall have the authority to access the childs information and records pursuant to subdivision (u) of Section 4514 and paragraph (23) of subdivision (a) of Section 5328, and to act on the childs behalf for the purposes of the individual program plan process pursuant to Sections 4646, 4646.5, and 4648 and the fair hearing process pursuant to Chapter 7 (commencing with Section 4700) of Division 4.5, and as set forth in the court order.
(k)For a placement made on or after October 1, 2021, each temporary placement of the child pursuant to subdivision (h) in a short-term residential therapeutic program shall comply with the requirements of Section 4096 and be reviewed by the court pursuant to Section 361.22.
(l)For a placement made on or after July 1, 2022, each temporary placement of the child pursuant to subdivision (h) in a community treatment facility shall comply with the requirements of Section 4096 and be reviewed by the court pursuant to Section 361.22.
SEC. 2.To the extent that this act has an overall effect of increasing the costs already borne by a local agency for programs or levels of service mandated by the 2011 Realignment Legislation within the meaning of Section 36 of Article XIII of the California Constitution, it shall apply to local agencies only to the extent that the state provides annual funding for the cost increase. Any new program or higher level of service provided by a local agency pursuant to this act above the level for which funding has been provided shall not require a subvention of funds by the state or otherwise be subject to Section 6 of Article XIIIB of the California Constitution.
(a)At the initial petition hearing, the court shall examine the childs parents, guardians, Indian custodian, or other persons having relevant knowledge and hear the relevant evidence as the child, the childs parents or guardians, the childs Indian custodian, the petitioner, the Indian childs tribe, or their counsel desires to present. The court may examine the child, as provided in Section 350.
(b)The social worker shall report to the court on the reasons why the child has been removed from the parents, guardians, or Indian custodians physical custody, the need, if any, for continued detention, the available services and the referral methods to those services that could facilitate the return of the child to the custody of the childs parents, guardians, or Indian custodian, and whether there are any relatives who are able and willing to take temporary physical custody of the child. If it is known or there is reason to know the child is an Indian child, the report shall also include all of the following:
(1)A statement of the risk of imminent physical damage or harm to the Indian child and any evidence that the emergency removal or placement continues to be necessary to prevent the imminent physical damage or harm to the child.
(2)The steps taken to provide notice to the childs parents, custodians, and tribe about the hearing pursuant to this section.
(3)If the childs parents and Indian custodians are unknown, a detailed explanation of what efforts have been made to locate and contact them, including contact with the appropriate Bureau of Indian Affairs regional director.
(4)The residence and the domicile of the Indian child.
(5)If either the residence or the domicile of the Indian child is believed to be on a reservation or in an Alaska Native village, the name of the tribe affiliated with that reservation or village.
(6)The tribal affiliation of the child and of the parents or Indian custodians.
(7)A specific and detailed account of the circumstances that caused the Indian child to be taken into temporary custody.
(8)If the child is believed to reside or be domiciled on a reservation in which the tribe exercises exclusive jurisdiction over child custody matters, a statement of efforts that have been made and that are being made to contact the tribe and transfer the child to the tribes jurisdiction.
(9)A statement of the efforts that have been taken to assist the parents or Indian custodians so the Indian child may safely be returned to their custody.
(c)The court shall order the release of the child from custody unless a prima facie showing has been made that the child comes within Section 300, the court finds that continuance in the parents or guardians home is contrary to the childs welfare, and any of the following circumstances exist:
(1)There is a substantial danger to the physical health of the child or the child is suffering severe emotional damage, and there are no reasonable means by which the childs physical or emotional health may be protected without removing the child from the parents or guardians physical custody.
(2)There is substantial evidence that a parent, guardian, or custodian of the child is likely to flee the jurisdiction of the court, and, in the case of an Indian child, fleeing the jurisdiction will place the child at risk of imminent physical damage or harm.
(3)The child has left a placement in which the child was placed by the juvenile court.
(4)The child indicates an unwillingness to return home, if the child has been physically or sexually abused by a person residing in the home.
(d)If the court knows or there is reason to know the child is an Indian child, the court may only detain the Indian child if it also finds that detention is necessary to prevent imminent physical damage or harm. The court shall state on the record the facts supporting this finding.
(e)(1)If the hearing pursuant to this section is continued pursuant to Section 322 or for any other reason, the court shall find that the continuance of the child in the parents or guardians home is contrary to the childs welfare at the initial petition hearing or order the release of the child from custody.
(2)If the court knows or has reason to know the child is an Indian child, the hearing pursuant to this section may not be continued beyond 30 days unless the court finds all of the following:
(A)Restoring the child to the parent, parents, or Indian custodian would subject the child to imminent physical damage or harm.
(B)The court is unable to transfer the proceeding to the jurisdiction of the appropriate Indian tribe.
(C)It is not possible to initiate an Indian child custody proceeding as defined in Section 224.1.
(f)(1)The court shall also make a determination on the record, referencing the social workers report or other evidence relied upon, as to whether reasonable efforts were made to prevent or eliminate the need for removal of the child from their home, pursuant to subdivision (b) of Section 306, and whether there are available services that would prevent the need for further detention. Services to be considered for purposes of making this determination are case management, counseling, emergency shelter care, emergency in-home caretakers, out-of-home respite care, teaching and demonstrating homemakers, parenting training, transportation, and any other child welfare services authorized by the State Department of Social Services pursuant to Chapter 5 (commencing with Section 16500) of Part 4 of Division 9. The court shall also review whether the social worker has considered whether a referral to public assistance services pursuant to Chapter 2 (commencing with Section 11200) and Chapter 7 (commencing with Section 14000) of Part 3 of, Chapter 1 (commencing with Section 17000) of Part 5 of, and Chapter 10 (commencing with Section 18900) of Part 6 of, Division 9 would have eliminated the need to take temporary custody of the child or would prevent the need for further detention.
(2)If the court knows or has reason to know the child is an Indian child, the court shall also determine whether the county welfare department made active efforts to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian family. The court shall order the county welfare department to initiate or continue services or programs pending disposition pursuant to Section 358.
(3)If the child can be returned to the custody of their parent, guardian, or Indian custodian through the provision of those services, the court shall place the child with their parent, guardian, or Indian custodian and order that the services shall be provided. If the child cannot be returned to the physical custody of their parent or guardian, the court shall determine if there is a relative who is able and willing to care for the child, and has been assessed pursuant to Section 361.4.
(4)In order to preserve the bond between the child and the parent and to facilitate family reunification, the court shall consider whether the child can be returned to the custody of their parent who is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with their parent. The fact that the parent is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with their parent shall not be, for that reason alone, prima facie evidence of substantial danger. The court shall specify the factual basis for its conclusion that the return of the child to the custody of their parent would pose a substantial danger or would not pose a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child.
(5)(A)In making the determination on whether to remove the child from their parent, guardian, or Indian custodian, the court shall consider any likely harm to the child that may result from their removal by considering all of the following factors:
(i)The childs attitude towards removal, ties to the parent, guardian, or Indian custodian, and relationships with other members of the household.
(ii)The disruption to the childs schooling and social relationships that may result from placement out of the neighborhood.
(iii)Any measures that can be taken to alleviate the disruption specified in clause (ii).
(B)Any predisposition reports prepared by the social worker shall contain information regarding any likely harm the child may suffer because of the removal from their parent, guardian, or Indian custodian and list recommended steps to be taken to minimize this harm.
(g)If a court orders a child detained, the court shall state the facts on which the decision is based, specify why the initial removal was necessary, reference the social workers report or other evidence relied upon to make its determination whether continuance in the home of the parent or legal guardian is contrary to the childs welfare, order temporary placement and care of the child to be vested with the county child welfare department pending the hearing held pursuant to Section 355 or further order of the court, and order services to be provided as soon as possible to reunify the child and their family, if appropriate.
(h)(1)(A)If the child is not released from custody, the court may order the temporary placement of the child in any of the following for a period not to exceed 15 judicial days:
(i)The home of a relative, an extended family member, as defined in Section 224.1 and Section 1903 of the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.), or a nonrelative extended family member, as defined in Section 362.7, that has been assessed pursuant to Section 361.4.
(ii)The approved home of a resource family, as defined in Section 16519.5, or a home licensed or approved by the Indian childs tribe.
(iii)An emergency shelter or other suitable licensed place.
(iv)A place exempt from licensure designated by the juvenile court.
(B)A youth homelessness prevention center licensed by the State Department of Social Services pursuant to Section 1502.35 of the Health and Safety Code shall not be a placement option pursuant to this section.
(C)If the court knows or has reason to know that the child is an Indian child, the Indian child shall be detained in a home that complies with the placement preferences set forth in Section 361.31 and in the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.), unless the court finds good cause exists pursuant to Section 361.31 not to follow the placement preferences. If the court finds good cause not to follow the placement preferences for detention, this finding does not affect the requirement that a diligent search be made for a subsequent placement within the placement preferences.
(2)Relatives shall be given preferential consideration for placement of the child. As used in this section, relative means an adult who is related to the child by blood, adoption, or affinity within the fifth degree of kinship, including stepparents, stepsiblings, and all relatives whose status is preceded by the words great, great-great, or grand, or the spouse of any of these persons, even if the marriage was terminated by death or dissolution.
(3)When placing in the home of a relative, an extended family member, as defined in Section 224.1 and Section 1903 of the federal Indian Child Welfare Act of 1978, or nonrelative extended family member, the court shall consider the recommendations of the social worker based on the assessment pursuant to Section 361.4 of the home of the relative, extended family member, or nonrelative extended family member, including the results of a criminal records check and prior child abuse allegations, if any, before ordering that the child be placed with a relative or nonrelative extended family member. The court may authorize the placement of a child on temporary basis in the home of a relative, regardless of the status of any criminal record exemption or resource family approval, if the court finds that the placement does not pose a risk to the health and safety of the child. The court shall order the parent to disclose to the social worker the names, residences, and any known identifying information of any maternal or paternal relatives of the child. The social worker shall initiate the assessment pursuant to Section 361.3 of any relative to be considered for continuing placement.
(i)In the case of an Indian child, any order detaining the child pursuant to this section shall be considered an emergency removal within the meaning of Section 1922 of the federal Indian Child Welfare Act of 1978. The emergency proceeding shall terminate if the child is returned to the custody of the parent, parents, or Indian custodian, the child has been transferred to the custody and jurisdiction of the childs tribe, or the agency or another party to the proceeding recommends that the child be removed from the physical custody of their parent or parents or Indian custodian pursuant to Section 361 or 361.2.
(j)(1)At the initial hearing upon the petition filed in accordance with subdivision (c) of Rule 5.520 of the California Rules of Court or anytime thereafter up until the time that the minor is adjudged a dependent child of the court or a finding is made dismissing the petition, the court may temporarily limit the right of the parent or guardian to make educational or developmental services decisions for the child and temporarily appoint a responsible adult to make educational or developmental services decisions for the child if all of the following conditions are found:
(A)The parent or guardian is unavailable, unable, or unwilling to exercise educational or developmental services rights for the child.
(B)The county placing agency has made diligent efforts to locate and secure the participation of the parent or guardian in educational or developmental services decisionmaking.
(C)The childs educational and developmental services needs cannot be met without the temporary appointment of a responsible adult.
(2)If the court limits the parents educational rights under this subdivision, the court shall determine whether there is a responsible adult who is a relative, nonrelative extended family member, or other adult known to the child and who is available and willing to serve as the childs educational representative before appointing an educational representative or surrogate who is not known to the child.
(3)If the court cannot identify a responsible adult to make educational decisions for the child and the appointment of a surrogate parent, as defined in subdivision (a) of Section 56050 of the Education Code, is not warranted, the court may, with the input of any interested person, make educational decisions for the child. If the child is receiving services from a regional center, the provision of any developmental services related to the courts decision shall be consistent with the childs individual program plan and pursuant to the Lanterman Developmental Disabilities Services Act (Division 4.5 (commencing with Section 4500)). If the court cannot identify a responsible adult to make developmental services decisions for the child, the court may, with the input of any interested person, make developmental services decisions for the child. If the court makes educational or developmental services decisions for the child, the court shall also issue appropriate orders to ensure that every effort is made to identify a responsible adult to make future educational or developmental services decisions for the child.
(4)A temporary appointment of a responsible adult and temporary limitation on the right of the parent or guardian to make educational or developmental services decisions for the child shall be specifically addressed in the court order. An order made under this section shall expire at the conclusion of the hearing held pursuant to Section 361 or upon dismissal of the petition. Upon the entering of disposition orders, additional needed limitation on the parents or guardians educational or developmental services rights shall be addressed pursuant to Section 361.
(5)This section does not remove the obligation to appoint surrogate parents for students with disabilities who are without parental representation in special education procedures, as required by state and federal law, including Section 1415(b)(2) of Title 20 of the United States Code, Section 56050 of the Education Code, Section 7579.5 of the Government Code, and Rule 5.650 of the California Rules of Court.
(6)If the court appoints a developmental services decisionmaker pursuant to this section, the developmental services decisionmaker shall have the authority to access the childs information and records pursuant to subdivision (u) of Section 4514 and paragraph (23) of subdivision (a) of Section 5328, and to act on the childs behalf for the purposes of the individual program plan process pursuant to Sections 4646, 4646.5, and 4648 and the fair hearing process pursuant to Chapter 7 (commencing with Section 4700) of Division 4.5, and as set forth in the court order.
(k)For a placement made on or after October 1, 2021, each temporary placement of the child pursuant to subdivision (h) in a short-term residential therapeutic program shall comply with the requirements of Section 4096 and be reviewed by the court pursuant to Section 361.22.
(l)For a placement made on or after July 1, 2022, each temporary placement of the child pursuant to subdivision (h) in a community treatment facility shall comply with the requirements of Section 4096 and be reviewed by the court pursuant to Section 361.22.
SEC. 2.To the extent that this act has an overall effect of increasing the costs already borne by a local agency for programs or levels of service mandated by the 2011 Realignment Legislation within the meaning of Section 36 of Article XIII of the California Constitution, it shall apply to local agencies only to the extent that the state provides annual funding for the cost increase. Any new program or higher level of service provided by a local agency pursuant to this act above the level for which funding has been provided shall not require a subvention of funds by the state or otherwise be subject to Section 6 of Article XIIIB of the California Constitution.
|
Date
|
Status
|
|---|---|
| Oct 8, 2023 | Chaptered by Secretary of State. Chapter 618, Statutes of 2023. |
| Oct 8, 2023 | Approved by the Governor. |
| Sep 21, 2023 | Enrolled and presented to the Governor at 4 p.m. |
| Sep 14, 2023 | Assembly amendments concurred in. (Ayes 40. Noes 0. Page 2846.) Ordered to engrossing and enrolling. |
| Sep 13, 2023 | In Senate. Concurrence in Assembly amendments pending. |
| Sep 13, 2023 | Read third time. Passed. (Ayes 77. Noes 0. Page 3461.) Ordered to the Senate. |
| Sep 7, 2023 | Read third time and amended. |
| Sep 7, 2023 | Ordered to third reading. |
| Sep 5, 2023 | Read second time. Ordered to third reading. |
| Sep 1, 2023 | Read second time and amended. Ordered to second reading. |
| Sep 1, 2023 | From committee: Do pass as amended. (Ayes 15. Noes 0.) (September 1). |
| Aug 23, 2023 | August 23 set for first hearing. Placed on suspense file. |
| Jul 13, 2023 | Read second time and amended. Re-referred to Com. on APPR. |
| Jul 12, 2023 | From committee: Do pass as amended and re-refer to Com. on APPR. (Ayes 7. Noes 0.) (July 11). |
| Jun 20, 2023 | From committee: Do pass and re-refer to Com. on HUM. S. with recommendation: To consent calendar. (Ayes 10. Noes 0.) (June 20). Re-referred to Com. on HUM. S. |
| Jun 8, 2023 | Referred to Coms. on JUD. and HUM. S. |
| May 25, 2023 | In Assembly. Read first time. Held at Desk. |
| May 25, 2023 | Read third time. Passed. (Ayes 40. Noes 0. Page 1302.) Ordered to the Assembly. |
| May 23, 2023 | Ordered to special consent calendar. |
| May 18, 2023 | Read second time. Ordered to third reading. |
| May 18, 2023 | From committee: Do pass. (Ayes 7. Noes 0. Page 1175.) (May 18). |
| May 12, 2023 | Set for hearing May 18. |
| May 8, 2023 | May 8 hearing: Placed on APPR suspense file. |
| May 1, 2023 | Set for hearing May 8. |
| Apr 25, 2023 | From committee: Do pass and re-refer to Com. on APPR with recommendation: To consent calendar. (Ayes 5. Noes 0. Page 877.) (April 24). Re-referred to Com. on APPR. |
| Apr 20, 2023 | Set for hearing April 24. |
| Apr 13, 2023 | Read second time and amended. Re-referred to Com. on HUMAN S. |
| Apr 12, 2023 | From committee: Do pass as amended and re-refer to Com. on HUMAN S. with recommendation: To consent calendar. (Ayes 10. Noes 0. Page 687.) (April 11). |
| Mar 30, 2023 | Set for hearing April 11. |
| Mar 29, 2023 | From committee with author's amendments. Read second time and amended. Re-referred to Com. on JUD. |
| Feb 22, 2023 | Referred to Coms. on JUD. and HUMAN S. |
| Feb 16, 2023 | From printer. May be acted upon on or after March 18. |
| Feb 15, 2023 | Introduced. Read first time. To Com. on RLS. for assignment. To print. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Sep 14, 2023 | Unfinished Business SB578 Ashby et al. Concurrence | Senate Floor |
Passed |
|
| Sep 13, 2023 | SB 578 Ashby Senate Third Reading By Reyes | Assembly Floor |
Passed |
|
| Sep 1, 2023 | Do pass as amended. | Assembly Standing Committee on Appropriations |
Passed |
|
| Jul 11, 2023 | Do pass as amended and be re-referred to the Committee on [Appropriations] | Assembly Standing Committee on Human Services |
Passed |
|
| Jun 20, 2023 | Do pass and be re-referred to the Committee on [Human Services] with recommendation: To Consent Calendar | Assembly Standing Committee on Judiciary |
Passed |
|
| May 25, 2023 | Special Consent SB578 Ashby et al. | Senate Floor |
Passed |
|
| May 18, 2023 | Do pass | Senate Standing Committee on Appropriations |
Passed |
|
| May 8, 2023 | Placed on suspense file | Senate Standing Committee on Appropriations |
Passed |
|
| Apr 24, 2023 | Do pass, but first be re-referred to the Committee on [Appropriations] with the recommendation: To Consent Calendar | Senate Standing Committee on Human Services |
Passed |
|
| Apr 11, 2023 | Do pass as amended, but first amend, and re-refer to the Committee on [Human Services] with the recommendation: To Consent Calendar | Senate Standing Committee on Judiciary |
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
|
|---|---|---|
| A New Way of Life Reentry Project | ** Support | |
| Aclu California Action | ** Support | |
| All Of Us Or None Orange County | ** Support | |
| Aouon Orange County | ** Support | |
| California Catholic Conference | ** Support | |
| California Families Rise | ** Support | |
| California Judges Association | ** Support | |
| California Lawyers Association, Family Law Section | ** Support | |
| Children's Bureau of Southern California | ** Support | |
| County of Santa Clara | ** Support | |
| Dependency Advocacy Center | ** Support | |
| Dependency Legal Services | ** Support | |
| Drug Policy Alliance | ** Support | |
| East Bay Family Defenders | ** Support | |
| Greater Sacramento Urban League | ** Support | |
| JMACforFamilies | ** Support | |
| Juvenile Court Judges of California | ** Support | |
| LA County Kids in Progress | * Support | Jul 11, 2023 |
| Legal Services for Prisoners with Children | ** Support | |
| Los Angeles Dependency Lawyers, Inc. | ** Support | |
| National Center for Lesbian Rights | ** Support | |
| National Center for Youth Law | ** Support | |
| National Center to Advance Peace and Equity for Children | ** Support | |
| National Center to Advance Peace and Equity for Children, Youth, and Families | ** Support | |
| National Coalition for Child Protection Reform | ** Support | |
| Opioid Policy Institute | ** Support | |
| Parents Against Cps/court Corruption | ** Support | |
| Pregnancy Justice | ** Support | |
| Public Counsel | ** Support | |
| Sayra & Neil Meyerhoff Center for Families, Children & the Courts | ** Support | |
| Starting Over, Inc. | ** Support | |
| Support Kids in Progress | * Support | Jul 11, 2023 |
| Upend Movement | ** Support | |
| western center on law and poverty | ** Support | |
| Young Women’s Freedom Center | ** Support |
SENATE RULES COMMITTEE Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | SB 578 |
UNFINISHED BUSINESS
Bill No: SB 578
Author: Ashby (D), et al.
Amended: 9/7/23
Vote: 21
SENATE JUDICIARY COMMITTEE: 10-0, 4/11/23
AYES: Umberg, Wilk, Allen, Ashby, Durazo, Laird, McGuire, Min, Niello, Wiener
NO VOTE RECORDED: Stern
SENATE HUMAN SERVICES COMMITTEE: 5-0, 4/24/23
AYES: Alvarado-Gil, Ochoa Bogh, Hurtado, Menjivar, Wahab
SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/18/23
AYES: Portantino, Jones, Ashby, Bradford, Seyarto, Wahab, Wiener
SENATE FLOOR: 40-0, 5/25/23
AYES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk
ASSEMBLY FLOOR: 77-0, 9/13/23 - See last page for vote
SUBJECT: Juvenile court: dependents: removal
SOURCE: California Judges Association
DIGEST:
This bill requires a social worker to report on, and a juvenile court to consider, the potential harms that may result from removing a child from their parent, guardian, or Indian custodian’s custody; and, if the child is or there is reason to know the child is an Indian child, requires the social worker to report on what efforts have been made to contact the child’s tribe.
Assembly Amendments
clarify the juvenile court’s obligations at the initial hearing, add material that must be included in the social worker’s report relating to the harms of removal and placement preferences, modify the factors that the court must consider and address in its order relating to less-disruptive alternatives to removal, and add chaptering-out amendments to avoid a conflict with AB 81 (Ramos, 2023) and AB 448 (Juan Carrillo, 2023).
ANALYSIS: Existing federal law establishes the Indian Child Welfare Act (ICWA), which provides guidance to states regarding the jurisdictional requirements, proceedings of tribal courts, and custody proceedings involving the removal of Indian children from their parents. (25 U.S.C., ch. 21, §§ 1901 et seq.)
Existing state law:
- Establishes the juvenile court, which is intended to provide for the protection and safety of the public and minors falling under its jurisdiction. (Welf. & Inst. Code, §§ 202, 245.)
- Provides that a minor may become a dependent of the juvenile court and be removed from the custody of their parent or guardian[1] on the basis of enumerated forms of abuse or neglect. (Welf. & Inst. Code, § 300(a)-(j).)
- Provides that the purpose of the juvenile court and the dependency system is to provide the maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm. This safety, protection, and physical and emotional well-being may include provision of a full array of social and health services to help the child and family and to prevent the reabuse of children. (Welf. & Inst. Code, § 300.2.)
- Provides that a proceeding to declare a child to be a dependent of the juvenile court is commenced when a social worker files a petition with the juvenile court. (Welf. & Inst. Code, § 325.)
- A social worker may file a petition while the child remains in the custody of their parent. (Welf. & Inst. Code, § 325.)
- If a child has been removed from the custody of their parent without a warrant and remains detained, pursuant to specified requirements, the child must be released within 48 hours, excluding nonjudicial days, unless a petition to declare the child a dependent of the juvenile court is filed. (Welf. & Inst. Code, §§ 305, 309, 313.)
- If it is known or there is reason to know that the child taken into custody under 4(b) is an Indian child, the social worker must comply with additional requirements consistent with the ICWA. (Welf. & Inst. Code, §§ 224, 224.1, 305.5.)
- Requires an initial hearing must be held on a petition to declare a child to be a dependent of the juvenile court. (Welf. & Inst. Code, § 319.)
- Requires a social worker to report information at the initial hearing as follows:
- For all children, the social worker must report to the court on the reasons the child was removed from the parent or Indian custodian’s physical custody, the need, if any, for further detention, the available services and referral methods that could facilitate the return of the child to their parent or Indian custodian’s custody, and whether there are any relatives willing and able to take temporary physical custody of the child. (Welf. & Inst. Code, § 319(b).)
- If it is known or there is reason to know that the child is an Indian child, the report must include additional information, including efforts taken to assist the parents or Indian custodians so the Indian child may safely be returned to their custody. (Welf. & Inst. Code, § 316(b)(1)-(9).)
- Requires, at an initial hearing where the child has already been detained, the court to order the release of the child from custody unless a prima facie showing has been made that the child is within the jurisdiction of the juvenile court, the court finds that the continuance in the parent’s home is contrary to the child’s welfare, and any of the following circumstances exist:
- There is a substantial danger to the physical health of the child or the child is suffering severe emotional damage, and there are no reasonable means by which the child’s physical or emotional health may be protected without removing the child from the parent’s custody.
- There is substantial evidence that a parent is likely to flee the jurisdiction of the court.
- The child has left a placement in which the child was placed by the juvenile court.
- The child indicates an unwillingness to return home, if the child has been physically or sexually abused by a person residing in the home. (Welf. & Inst. Code, § 319(c).)
- Imposes, if the child is an Indian child, limitations in addition to those in 7) for a court to order that the Indian child remain in detention:
- When the court finds that there is substantial evidence that a parent or Indian custodian is likely to flee the jurisdiction, the court must also find that fleeing the jurisdiction will place the child at risk of imminent physical damage or harm.
- Under all circumstances, the court may detain the Indian child only if it also finds that detention is necessary to prevent imminent physical damage or harm and must state the facts supporting the finding on the record. (Welf. & Inst. Code, § 319(c), (d).)
- Authorizes, at an initial hearing where a child has not yet been detained, a court to order the child to be detained, provided that the court does all of the following:
- States the facts on which the decision was based.
- Specifies why the initial removal was necessary.
- References the social worker’s report or other evidence relied upon to make its determination whether continuance in the home of the parent or legal guardian is contrary to the child’s welfare.
- Makes orders addressing the child’s placement and care and the provision of reunification services, as appropriate. (Welf. & Inst. Code, § 319(g).)
- Establishes, for children who remain out of or are removed from their parent’s custody after the initial hearing, a series of review hearings at six-month intervals at which the court may return the child to their parent’s custody or continue the child’s placement outside their parent’s home; these review hearings may culminate in a permanency hearing that terminates parental rights and a permanent placement for the child. (Welf. & Inst. Code, §§ 361.5, 366.21, 366.22, 366.25.)
This bill:
- Requires a social worker, in their report to the court prior to the initial hearing on whether to remove a child from, or keep a child out of, their parent or Indian custodian’s custody, to include:
- Information regarding any short-term and long-term harms that may result from the child’s removal from custody, including, but not limited to, the factors set forth in 2)a)-c), as well as measures to alleviate the disruption and minimize the harms of removal with the least disruptive alternatives and.
- If it is known or there is reason to know the child is an Indian child, the social worker’s compliance with placement preferences, as specified, and the steps taken to consult and collaborate with the child’s tribe and the outcome.
- Requires a court, as part of its determination as to whether continuance in the parent’s home is contrary to the child’s welfare at the initial hearing, to consider the report filed in 1) and determine whether less disruptive alternatives to removal were considered by the child welfare agency, such as factors related to the impact of removal on the child, including, but not limited to:
- A description of the relationship between the child and their parents, guardians, or Indian custodians, based on the child’s perspective, and the child’s response to removal and, where developmentally appropriate, their perspective on removal.
- The relationship between the child and any siblings.
- The relationship between the child and any other members of the household.
- The disruption to the child’s schooling, social relationships, and physical or emotional health that may result from placement out of the home, and, in the case of an Indian child, any impact on the child’s connection to their tribe, extended family members, and tribal community.
- Requires a court, if it finds at the initial hearing that removal is necessary, to, in a written order or on the record, set forth all of the following:
- The basis for its findings and the evidence relied on.
- Its determination regarding the child’s placement, including whether it complies with the placement preferences for Indian children and less disruptive alternatives.
- Any orders necessary to alleviate any disruption or harm to the child resulting from removal.
- Provides that nothing permits a child to be released to a parent, legal guardian, or Indian custodian, or to be placed in an unsafe placement, due solely to the court determining the child was not offered less disruptive alternatives.
- Requires a court, when making a determination on the record regarding whether reasonable efforts were made to prevent or eliminate the need for removal, as specified, to make the determination for each child individually, with the considerations tailored to the individual child.
- Adds chaptering-out amendments to avoid a conflict with AB 81 (Ramos, 2023) and AB 448 (Juan Carrillo, 2023).
Comments
Author’s statement
There is no disputing that children suffer harm when they are separated from their parents. The highly traumatic experience of family separation can cause irreparable harm, disrupting a child's brain architecture and affecting their short- and long-term health. SB 578 is a bill sponsored by the very judges who are charged with this most difficult task. SB 578 seeks to reduce the harm a child must endure by requiring a trauma informed analysis be provided to judges in advance of any removal decision. Judges will make a more informed decision in the best interest of the child when given the requested analysis they need to weigh what is the safest and healthiest outcome given all that is happening in the life of the child before them.
SB 578 will require the court to consider the trauma a child will experience as a result of removal from parental care and weigh that harm against the potential risk of non-removal. The trauma analysis will include connections not only to family, but also to school and community. Judges will have a better opportunity to mitigate harms by having this additional context at the time of deciding how best to proceed. The judge will also be able to ask that the social worker’s harm reduction, trauma informed report include suggested mitigation solutions to the impact of removal. Eight states and Washington D.C. require the courts to assess the harm of removal, or include the harm of removal and emphasis on family preservation in their reasonable efforts criteria or agency guidance. It is time that California follows their lead and requires our own trauma-informed harm reduction model, in so doing, we can better protect children and their families across our great state.
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes
According to the Assembly Appropriations Committee:
- Costs (General Fund (GF)) to the Department of Social Services (DSS) to provide technical assistance and training to county child welfare agencies. DSS anticipates costs of $341,000 in fiscal year 2024-25 and $330,000 annually ongoing for two additional analyst positions.
- Potential costs of an unknown amount (GF, local funds, federal funds) to the counties for social workers to provide additional information in their detention hearing reports. Actual costs will depend on whether social workers already routinely gather and report the type of information required by this bill or if doing so will significantly add to their workload for each case. DSS anticipates providing county child welfare agencies $1.2 million annually ongoing GF to fulfill the duties required by this bill. Although these potential county costs are mandated by the state, they are not reimbursable but instead must be paid by the state pursuant to Proposition 30 (2012). Proposition 30 provides that legislation enacted after September 30, 2012, that has an overall effect of increasing the costs already borne by a local agency for programs or levels of service mandated by realignment (including child welfare services and foster care) applies to local agencies only to the extent the state provides annual funding for the cost increase.
SUPPORT: (Verified 9/13/23)
California Judges Association (source)
A New Way of Life Reentry Project
ACLU California Action
All of Us or None Orange County
California Catholic Conference
California Families Rise
California Lawyers Association, Family Law Section Executive Committee
Children’s Bureau of Southern California
County of Santa Clara
Dependency Advocacy Center
Dependency Legal Services
Drug Policy Alliance
East Bay Family Defenders
Greater Sacramento Urban League
JMACforFamilies
Juvenile Court Judges of California
Legal Services for Prisoners with Children
Los Angeles Dependency Lawyers, Inc.
National Center for Lesbian Rights
National Center for Youth Law
National Center to Advance Peace and Equity for Children
National Coalition for Child Protection Reform
Opioid Policy Institute
Parents Against CPS/Court Corruption
Pregnancy Justice
Public Counsel
Starting Over, Inc.
upEND Movement
Western Center on Law and Poverty
Young Women’s Freedom Center
Two individuals
OPPOSITION: (Verified 9/13/23)
None received
ARGUMENTS IN SUPPORT: According to the National Center for Youth Law:
Unlike eight other states and Washington D.C., California has no statutory requirement for juvenile courts to consider the many types of trauma a child experiences when removed from care of their parent(s). Removal causes children, their families, and their communities significant and often irreparable harms. Highly stressful experiences like family separation disrupt a child's brain architecture, harm their short- and long-term health, and “contradict…protecting and promoting children’s health.” Many studies have shown that children left at home often fared better than similarly situated children who were removed and placed in foster care. Courts have agreed with research showing that removing a child from their parent may be “more damaging to the child than doing nothing at all.”…
SB 578 will protect children by ensuring that these known harms are at the fore of any judicial decision to inflict the severe and traumatizing intervention of separating a child from their parent(s).
ASSEMBLY FLOOR: 77-0, 9/13/23
AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Connolly, Megan Dahle, Davies, Dixon, Essayli, Flora, Mike Fong, Vince Fong, Friedman, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, Mathis, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas
NO VOTE RECORDED: Bauer-Kahan, Chen, Luz Rivas
Prepared by: Allison Whitt Meredith / JUD. / (916) 651-4113
9/14/23 10:34:49
**** END ****
Going forward, this analysis uses “parent” to include “guardian” and the single includes the plural. ↑
SENATE THIRD READING
STR Bill Id:SB 578
Author:(Ashby)
As Amended Ver:September 7, 2023
Majority vote
SUMMARY
Requires a social worker to report on, and a juvenile court to consider, the potential harms that result from removing a child from their parent, guardian, or Indian custodian's custody.
Major Provisions
- Requires the social workers' predisposition reports to contain information regarding short-term and long-term harms to the child that may result from their removal from the custody of their parent, guardian, or Indian custodian. This includes, but is not limited to:
- The child's attitude toward removal and the existing relationship between the child and their parents, guardians, or Indian custodians.
- The existing relationship between the child and other members of the household, including, but not limited to, siblings.
- The disruption to the child's schooling, social relationships, and physical or emotional health that may result from placement out of the home.
- Measures to alleviate the disruption and minimize the harms of removal with the least disruptive alternatives.
- The steps taken to consult and collaborate with the tribe and the outcome of that consultation and collaboration, if it is known or there is reason to know the child is an Indian child.
- Requires the court, in making the determination on whether continuance in the parent's or guardian's home is contrary to the child's welfare, to consider the short-term and long-term harms to the child that may result from the continued removal. Requires the court, in making this determination, to determine whether less disruptive alternatives to removal were considered by the agency, such as factors related to the impact of removal on the child, including, but not limited to, the following:
- A description of the relationship between the child and their parents, guardians, or Indian custodians, based on the child’s perspective, and the child’s response to removal and, where developmentally appropriate, their perspective on removal.
- The relationship between the child and any siblings.
- The relationship between the child and other members of the household.
- Any disruption to the child’s schooling, social relationships, and physical or emotional health that may result from placement out of the home, and in the case of an Indian child, any impact on the child’s connection to their tribe, extended family members, and tribal community.
- Requires the court, if it finds that removal of a child from a parent's or guardian's home is necessary, in a written order or on the record, set forth all of the following:
- The basis for its findings and the evidence relied on.
- Its determination regarding the child’s placement, including whether it complies with the placement preferences set forth in Section 361.31 and less disruptive alternatives.
- Include any orders necessary to alleviate any disruption or harm to the child resulting from removal.
- Clarifies that nothing about the above changes in the law allow a child to be released to a parent, legal guardian, or Indian custodian, or to be placed in an unsafe placement, due solely to the court determining the child was not offered less disruptive alternatives.
- Includes chaptering language to resolve conflicts with two other bills: AB 81 and AB 448, of the current legislative session.
COMMENTS
While removing children from the custody of their parents, guardians, or Indian caregivers is proven to be traumatic to children, the child welfare system tends to err on the side of removal as the safest approach to protect children from harm. This bill, sponsored by the California Judges Association, requires a juvenile court to make a trauma-informed analysis of the negative consequences that a child likely will experience as a result of removal from their home, prior to ordering removal.
Harms Caused by Removal. Studies have shown that while the child welfare system tends to err on the side of removal, removal itself can cause irreparable harm. According to the American Academy of Pediatrics, removal from parents can disrupt a child's brain architecture and negatively impact their health. (See William Wan, "What separation from parents does to children: 'The effect is catastrophic,'" (June 18, 2018) Washington Post, available at https://www.washingtonpost.com/national/health-science/what-separation-from-parents-does-to-children-the-effect-is-catastrophic/2018/06/18/c00c30ec-732c-11e8-805c-4b67019fcfe4_story.html?noredirect=on.)
Their heart rate goes up. Their body releases a flood of stress hormones such as cortisol and adrenaline. Those stress hormones can start killing off dendrites – the little branches in brain cells that transmit messages. In time, the stress can start killing off neurons and – especially in young children – wreaking dramatic and long-term damage, both psychologically and to the physical structure of the brain. (Ibid.)
These immediate physical and psychological experiences have long-term and irreversible catastrophic impacts on children:
The children, who had been separated from their parents in their first two years of life, scored significantly lower on IQ tests later in life. Their fight-or-flight response system appeared permanently broken. . . . Unlike other parts of the body, most cells in the brain cannot renew or repair themselves. (Wan, "What separation from parents does to children: 'The effect is catastrophic,'" supra.)
The impact of removing children from their homes may be worse than leaving them in suboptimal homes. Furthermore, the weight of social scientific evidence suggests that children who are removed from their homes based on allegations of abuse or neglect often face more abuse and neglect in foster care.
This bill ensures that social workers include more information in their predisposition reports about the short-term and long-term harms to the child that may result from their removal from the custody of their parent, guardian, or Indian custodian. This includes, but is not limited to information about the child's attitude toward removal and the disruption to the child's schooling, social relationships, and physical or emotional health that may result from placement out of the home. The bill also requires a juvenile court, when determining whether continuance in the parent's or guardian's home is contrary to the child's welfare, to consider information in the short-term and long-term harms to the child that may result from the continued removal. Finally, it requires the juvenile court, if the court finds that removal of a child or Indian child is necessary, to make a determination of its findings, referencing the social worker's report and other evidence relied upon, and specify the measures to be taken to alleviate the disruption and minimize the harms of removal with the least disruptive alternatives in a written order or on the record.
It is important to note that the bill does not change the grounds for a juvenile court to exercise jurisdiction in a child welfare matter; nor does it change the criteria for a court to order that a child be removed from, or returned to, the custody of their parent, guardian, or Indian custodian. Rather, it seeks to ensure that courts make these crucial decisions in a more careful, deliberate, and trauma-informed manner for the short and long-term benefit of the child.
According to the Author
There is no disputing that children suffer harm when they are separated from their parents. The highly traumatic experience of family separation can cause irreparable harm, disrupting a child's brain architecture and affecting their short- and long-term health. . . . SB578 seeks to reduce the harm a child must endure by requiring a trauma informed analysis be provided to judges in advance of any removal decision. Judges will make a more informed decision in the best interest of the child when given the requested analysis they need to weigh what the safest and healthiest outcome is given all that is happening in the life of the child before them.
. . . Judges will have a better opportunity to mitigate harms by having this additional context at the time of deciding how best to proceed. The judge will also be able to ask that the social worker's harm reduction, trauma informed report include suggested mitigation solutions to the impact of removal. Eight states and Washington D.C. require the courts to assess the harm of removal, or include the harm of removal and emphasis on family preservation in their reasonable efforts criteria or agency guidance. It is time that California follows their lead and requires our own trauma-informed harm reduction model, in so doing, we can better protect children and their families across our great state.
Arguments in Support
The California Judges Association and the Juvenile Court Judges of California, write in support of this bill that, "Juvenile court judges make critical decisions concerning the well-being of our state's most vulnerable children. While our judges take the harm that children may experience when removed from parental custody into consideration, no statute specifically addresses how the court should consider this harm. SB 578 seeks to provide some guidelines for the court to consider as well as asking the court to consider methods that might reduce that trauma."
Arguments in Opposition
No opposition on file.
FISCAL COMMENTS
According to the Assembly Appropriations Committee:
- Costs (General Fund (GF)) to the Department of Social Services (DSS) to provide technical assistance and training to county child welfare agencies. DSS anticipates costs of $341,000 in fiscal year 2024-25 and $330,000 annually ongoing for two additional analyst positions.
- Potential costs of an unknown amount (GF, local funds, federal funds) to the counties for social workers to provide additional information in their detention hearing reports. Actual costs will depend on whether social workers already routinely gather and report the type of information required by this bill or if doing so will significantly add to their workload for each case. DSS anticipates providing county child welfare agencies $1.2 million annually ongoing GF to fulfill the duties required by this bill. Although these potential county costs are mandated by the state, they are not reimbursable but instead must be paid by the state pursuant to Proposition 30 (2012). Proposition 30 provides that legislation enacted after September 30, 2012, that has an overall effect of increasing the costs already borne by a local agency for programs or levels of service mandated by realignment (including child welfare services and foster care) applies to local agencies only to the extent the state provides annual funding for the cost increase.
VOTES
SENATE FLOOR: 40-0-0
YES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk
ASM JUDICIARY: 10-0-1
YES: Maienschein, Essayli, Connolly, Dixon, Haney, Kalra, Pacheco, Papan, Reyes, Robert Rivas
ABS, ABST OR NV: Sanchez
ASM HUMAN SERVICES: 7-0-1
YES: Jackson, Sanchez, Alanis, Arambula, Bonta, Bryan, Garcia
ABS, ABST OR NV: Calderon
ASM APPROPRIATIONS: 15-0-1
YES: Holden, Megan Dahle, Bryan, Calderon, Wendy Carrillo, Dixon, Mike Fong, Hart, Lowenthal, Mathis, Papan, Pellerin, Sanchez, Weber, Wilson
ABS, ABST OR NV: Soria
UPDATED
VERSION: September 7, 2023
CONSULTANT: Alison Merrilees / JUD. / (916) 319-2334 FN: 0001925
SENATE THIRD READING
STR Bill Id:SB 578
Author:(Ashby)
As Amended Ver:September 1, 2023
Majority vote
SUMMARY
Requires a social worker to report on, and a juvenile court to consider, the potential harms that result from removing a child from their parent, guardian, or Indian custodian's custody.
Major Provisions
- Requires the social workers' predisposition reports to contain information regarding short-term and long-term harms to the child that may result from their removal from the custody of their parent, guardian, or Indian custodian. This includes, but is not limited to:
- The child's attitude toward removal and the existing relationship between the child and their parents, guardians, or Indian custodians.
- The existing relationship between the child and other members of the household, including, but not limited to, siblings.
- The disruption to the child's schooling, social relationships, and physical or emotional health that may result from placement out of the home.
- Measures to alleviate the disruption and minimize the harms of removal with the least disruptive alternatives.
- The steps taken to consult and collaborate with the tribe and the outcome of that consultation and collaboration, if it is known or there is reason to know the child is an Indian child.
- Requires the court, in making the determination on whether continuance in the parent's or guardian's home is contrary to the child's welfare, to consider the short-term and long-term harms to the child that may result from the continued removal. Requires the court, in making this determination, to review the social worker's report and any other evidence in considering factors that include, but are not limited to, all of the following:
- The child's attitude towards removal and the existing relationship between the child and their parents, guardians, or Indian custodians.
- The existing relationship between the child and other members of the household, including, but not limited to, siblings.
- The disruption to the child's schooling, social relationships, and physical or emotional health that may result from placement out of the home.
- Requires the court, if it finds that removal of a child from a parent's or guardian's home is necessary, to make a determination of its findings, referencing the social worker's report and other evidence relied upon, and specify among other things, the measures to be taken to alleviate the disruption and minimize the harms of removal with the least disruptive alternatives in a written order or on the record.
COMMENTS
While removing children from the custody of their parents, guardians, or Indian caregivers is proven to be traumatic to children, the child welfare system tends to err on the side of removal as the safest approach to protect children from harm. This bill, sponsored by the California Judges Association, requires a juvenile court to make a trauma-informed analysis of the negative consequences that a child likely will experience as a result of removal from their home, prior to ordering removal.
Harms Caused by Removal. Studies have shown that while the child welfare system tends to err on the side of removal, removal itself can cause irreparable harm. According to the American Academy of Pediatrics, removal from parents can disrupt a child's brain architecture and negatively impact their health. (See William Wan, "What separation from parents does to children: 'The effect is catastrophic,'" (June 18, 2018) Washington Post, available at https://www.washingtonpost.com/national/health-science/what-separation-from-parents-does-to-children-the-effect-is-catastrophic/2018/06/18/c00c30ec-732c-11e8-805c-4b67019fcfe4_story.html?noredirect=on.)
Their heart rate goes up. Their body releases a flood of stress hormones such as cortisol and adrenaline. Those stress hormones can start killing off dendrites – the little branches in brain cells that transmit messages. In time, the stress can start killing off neurons and – especially in young children – wreaking dramatic and long-term damage, both psychologically and to the physical structure of the brain. (Ibid.)
These immediate physical and psychological experiences have long-term and irreversible catastrophic impacts on children:
The children, who had been separated from their parents in their first two years of life, scored significantly lower on IQ tests later in life. Their fight-or-flight response system appeared permanently broken. . . . Unlike other parts of the body, most cells in the brain cannot renew or repair themselves. (Wan, "What separation from parents does to children: 'The effect is catastrophic,'" supra.)
The impact of removing children from their homes may be worse than leaving them in suboptimal homes. Furthermore, the weight of social scientific evidence suggests that children who are removed from their homes based on allegations of abuse or neglect often face more abuse and neglect in foster care.
This bill ensures that social workers include more information in their predisposition reports about the short-term and long-term harms to the child that may result from their removal from the custody of their parent, guardian, or Indian custodian. This includes, but is not limited to information about the child's attitude toward removal and the disruption to the child's schooling, social relationships, and physical or emotional health that may result from placement out of the home. The bill also requires a juvenile court, when determining whether continuance in the parent's or guardian's home is contrary to the child's welfare, to consider information in the short-term and long-term harms to the child that may result from the continued removal. Finally, it requires the juvenile court, if the court finds that removal of a child or Indian child is necessary, to make a determination of its findings, referencing the social worker's report and other evidence relied upon, and specify the measures to be taken to alleviate the disruption and minimize the harms of removal with the least disruptive alternatives in a written order or on the record.
It is important to note that the bill does not change the grounds for a juvenile court to exercise jurisdiction in a child welfare matter; nor does it change the criteria for a court to order that a child be removed from, or returned to, the custody of their parent, guardian, or Indian custodian. Rather, it seeks to ensure that courts make these crucial decisions in a more careful, deliberate, and trauma-informed manner for the short and long-term benefit of the child.
According to the Author
There is no disputing that children suffer harm when they are separated from their parents. The highly traumatic experience of family separation can cause irreparable harm, disrupting a child's brain architecture and affecting their short- and long-term health. . . . SB578 seeks to reduce the harm a child must endure by requiring a trauma informed analysis be provided to judges in advance of any removal decision. Judges will make a more informed decision in the best interest of the child when given the requested analysis they need to weigh what the safest and healthiest outcome is given all that is happening in the life of the child before them.
. . . Judges will have a better opportunity to mitigate harms by having this additional context at the time of deciding how best to proceed. The judge will also be able to ask that the social worker's harm reduction, trauma informed report include suggested mitigation solutions to the impact of removal. Eight states and Washington D.C. require the courts to assess the harm of removal, or include the harm of removal and emphasis on family preservation in their reasonable efforts criteria or agency guidance. It is time that California follows their lead and requires our own trauma-informed harm reduction model, in so doing, we can better protect children and their families across our great state.
Arguments in Support
The California Judges Association and the Juvenile Court Judges of California, write in support of this bill that, "Juvenile court judges make critical decisions concerning the well-being of our state's most vulnerable children. While our judges take the harm that children may experience when removed from parental custody into consideration, no statute specifically addresses how the court should consider this harm. SB 578 seeks to provide some guidelines for the court to consider as well as asking the court to consider methods that might reduce that trauma."
Arguments in Opposition
No opposition on file.
FISCAL COMMENTS
According to the Assembly Appropriations Committee:
- Costs (General Fund (GF)) to the Department of Social Services (DSS) to provide technical assistance and training to county child welfare agencies. DSS anticipates costs of $341,000 in fiscal year 2024-25 and $330,000 annually ongoing for two additional analyst positions.
- Potential costs of an unknown amount (GF, local funds, federal funds) to the counties for social workers to provide additional information in their detention hearing reports. Actual costs will depend on whether social workers already routinely gather and report the type of information required by this bill or if doing so will significantly add to their workload for each case. DSS anticipates providing county child welfare agencies $1.2 million annually ongoing GF to fulfill the duties required by this bill. Although these potential county costs are mandated by the state, they are not reimbursable but instead must be paid by the state pursuant to Proposition 30 (2012). Proposition 30 provides that legislation enacted after September 30, 2012, that has an overall effect of increasing the costs already borne by a local agency for programs or levels of service mandated by realignment (including child welfare services and foster care) applies to local agencies only to the extent the state provides annual funding for the cost increase.
VOTES
SENATE FLOOR: 40-0-0
YES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk
ASM JUDICIARY: 10-0-1
YES: Maienschein, Essayli, Connolly, Dixon, Haney, Kalra, Pacheco, Papan, Reyes, Robert Rivas
ABS, ABST OR NV: Sanchez
ASM HUMAN SERVICES: 7-0-1
YES: Jackson, Sanchez, Alanis, Arambula, Bonta, Bryan, Garcia
ABS, ABST OR NV: Calderon
ASM APPROPRIATIONS: 15-0-1
YES: Holden, Megan Dahle, Bryan, Calderon, Wendy Carrillo, Dixon, Mike Fong, Hart, Lowenthal, Mathis, Papan, Pellerin, Sanchez, Weber, Wilson
ABS, ABST OR NV: Soria
UPDATED
VERSION: September 1, 2023
CONSULTANT: Alison Merrilees / JUD. / (916) 319-2334 FN: 0001642
Date of Hearing: August 23, 2023
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Chris Holden, Chair
SBPCA Bill Id:SB 578
Author:(Ashby) – As Amended Ver:July 13, 2023
Policy Committee: | Judiciary | Vote: | 10 - 0 |
Human Services | 7 - 0 | ||
|
|
Urgency: No State Mandated Local Program: Yes Reimbursable: Yes
SUMMARY:
This bill requires a social worker to include, in their report for a detention hearing in a dependency case, information about potential harms a child may experience if removed from their parent or guardian’s home, and requires a court to document certain findings if it determines that a child must be removed from their parent or guardian’s home.
Specifically, this bill:
- Requires, for a detention hearing, the social worker to include in their report to the court information regarding the short-term and long-term harms to the child that may result from their removal from their parent or guardian’s home, an assessment of the least disruptive alternatives to returning the child to their parent or guardian’s home, and other measures that may be taken to alleviate disruption and minimize the harms of removal.
- Requires, if it is known or there is reason to know that the child is an Indian child, the social worker’s report to include the steps taken to consult the tribe and the outcome of that consultation.
- Requires the court, in determining whether continuance in the parent or guardian’s home is contrary to the child’s welfare, to consider the short-term and long-term harms to the child that may result from their continued removal.
- If the court finds removal is necessary, requires the court to, in a written order or on the record, document the basis for its findings and the evidence it relied on, the child’s placement and the basis for determining that it is the least disruptive alternative for the child, and any other measures to be taken to alleviate disruption and minimize the harms to the child.
FISCAL EFFECT:
- Costs (General Fund (GF)) to the Department of Social Services (DSS) to provide technical assistance and training to county child welfare agencies. DSS anticipates costs of $341,000 in fiscal year 2024-25 and $330,000 annually ongoing for two additional analyst positions.
- Potential costs of an unknown amount (GF, local funds, federal funds) to the counties for social workers to provide additional information in their detention hearing reports. Actual costs will depend on whether social workers already routinely gather and report the type of information required by this bill or if doing so will significantly add to their workload for each case. DSS anticipates providing county child welfare agencies $1.2 million annually ongoing GF to fulfill the duties required by this bill. Although these potential county costs are mandated by the state, they are not reimbursable but instead must be paid by the state pursuant to Proposition 30 (2012). Proposition 30 provides that legislation enacted after September 30, 2012, that has an overall effect of increasing the costs already borne by a local agency for programs or levels of service mandated by realignment (including child welfare services and foster care) applies to local agencies only to the extent the state provides annual funding for the cost increase.
COMMENTS:
- Purpose. According to the author:
There is no disputing that children suffer harm when they are separated from their parents. The highly traumatic experience of family separation can cause irreparable harm, disrupting a child’s brain architecture and affecting their short- and long-term health. … SB 578 seeks to reduce the harm a child must endure by requiring a trauma informed analysis be provided to judges in advance of any removal decision. Judges will make a more informed decision in the best interest of the child when given the requested analysis they need to weigh what the safest and healthiest outcome is given all that is happening in the life of the child before them.
- Background. If the state must remove a child from their parent’s home, the goal of the child welfare system is to safely reunite the child with their parent whenever possible. Typically, a dependency case begins when a social worker investigates possible child abuse or neglect. If warranted, the social worker may temporarily remove the child from their parent’s custody and place them in the temporary custody of another parent, a relative, or a foster home. If the child is temporarily removed from their parent’s custody, the social worker must file a petition asking the court to hold an initial hearing (a “detention hearing”) to determine whether it is in the child’s best interest to be removed from their parent’s custody for a longer period of time. Before the detention hearing, the social worker also submits a report to the court about the reasons the child was removed from the parent’s home, the need for continued detention, the types of services that could facilitate the return of the child to their parent’s home, and whether there are any relatives who can take temporary custody of the child.
This bill requires the social worker to include information in the report about the short- and long-term harms that may result to the child from their removal from their parent’s custody and information about how to minimize potential harms to the child during the removal and custody placement process. As described in detail in the policy analyses of this bill, it can be very traumatic for a child to be removed from their parent’s home, even if the care the child received from their parent is insufficient or harmful. This portion of the bill seeks to provide the dependency court with additional information about how to make removal and temporary custody placement less harmful and disruptive for the child.
At the detention hearing, existing law requires the court to examine and consider evidence from the child’s parent, the child, and anyone else with relevant information. Using this information and considering several specific factors outlined in statute, the court must determine whether returning the child to their parent’s home is contrary to the child’s welfare. This bill requires the court to consider the short- and long-term harms that may result to the child if they are removed from their parent’s custody for a longer period of time. If the court still determines that it is necessary for the removal to continue, the court must document the reasons behind its decision and show that it considered the most appropriate and least disruptive options for the child, either in a written order or on the record at the hearing.
- Related Legislation. SB 463 (Wahab) eliminates an evidentiary presumption that requires a court to assume that, if a child’s parent has not participated in a court-ordered treatment program, returning the child to the parent’s custody would be detrimental to the child. SB 463 is pending on the Assembly Second Reading File.
SB 824 (Ashby) authorizes DSS to grant criminal record exemptions to qualifying nonrelative extended family members or extended family members of children placed in the child welfare system. SB 824 is pending on this committee’s suspense file.
Analysis Prepared by: Annika Carlson / APPR. / (916) 319-2081
Date of Hearing: July 11, 2023
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Corey A. Jackson, Chair
SBPCA Bill Id:SB 578
Author:(Ashby) – As Amended Ver:April 13, 2023
SENATE VOTE: 40-0
SUBJECT: Juvenile court: dependents: removal
SUMMARY: Requires a social worker to include specified information to the court at the initial petition hearing regarding the short-term and long-term harms to the child that may result from removal from their parent’s, guardian’s, or Indian custodian’s (parent’s) physical custody. Specifically, this bill:
- Requires the social worker, at the initial petition hearing to determine whether there is the need for continued detention for a youth who has been removed from their parent’s physical custody, to include in their report to the court, information regarding the short-term and long-term harms to the child that may result from their removal, including, but not limited to, the least disruptive alternatives to returning the child to the custody of their parent, other measures that may be taken to alleviate disruption and minimize the harms of removal, and the information specified in 3) below.
- Specifies that if it is known, or there is reason to know, that the child is an Indian child, the report also is required to include the steps taken to consult with the tribe and the outcome of that consultation.
- Requires the court to consider, in determining whether continuance in the parent’s home is contrary to the child’s welfare, the short-term and long-term harms to the child that may result from the continued removal. Further requires the court in making this determination, to review the social worker’s report and any other evidence in considering factors that include, but are not limited to, all of the following:
- The child’s attitude toward removal and the existing relationship between the child and their parents;
- The existing relationship between the child and other members of the household, including, but not limited to, siblings; and,
- The disruption to the child’s schooling, social relationships, and physical or emotional health that may result from placement out of the home.
- Requires the court, if the court finds that removal is necessary, to, in a written order or on the record, set forth all of the following:
- The basis for its findings and the evidence relied on, including, if applicable, the social worker’s report;
- The child’s placement and the basis for determining that the placement is the least disruptive alternative for the child; and,
- Any other measures to be taken in order to alleviate disruption and minimize the harms of removal for the child.
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 abuse and neglect or to have been abused or neglected, as specified. (Welfare and Institutions Code Section [WIC] 202)
- Establishes a system of juvenile dependency for children for specified reasons, and designates that a child who meets certain criteria is within the jurisdiction of the juvenile court and may be adjudged as a dependent child of the court, as specified. (WIC 300 et seq.)
- Requires a social worker to immediately investigate the circumstance of the child and the facts surrounding the child being taken into custody and attempt to maintain the child with the child’s family through the provision of services, when a child is taken into temporary custody, as provided, and brought to the social worker. (WIC 309(a))
- States that the purpose of foster care law is to provide maximum safety and protection for children who are currently being physically, sexually, 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 legislative intent to preserve and strengthen a child’s family ties whenever possible and to reunify a foster youth with their biological family whenever possible, or to provide a permanent placement alternative, such as adoption or guardianship. (WIC 16000)
- Requires a county to file a petition to the court requesting a detention hearing within 48 hours of placing a child under temporary custody to determine whether a child should remain in custody and whether any specific court permissions are necessary to provide for the health and safety of the child. (WIC 313 and 319)
- Requires, if a child is removed, the social worker to conduct, within 30 days, an investigation in order to identify and locate all grandparents, parents of a sibling of the child, if the parent has legal custody of the sibling, adult siblings, other adult relatives of the child, including any other adult relatives suggested by the parents, and, if it is known or there is reason to know, the child is an Indian child. (WIC 309(e)(1))
- Requires a social worker to use due diligence in investigating the names and locations of the relatives, as well as any parent and alleged parents, and requires each county welfare department to do both of the following:
- Create and make public a procedure by which a parent and relatives of a child who has been removed from their parents or guardians may identify themselves to the county welfare department and requires the county welfare department to provide parents and relatives with specified notices; and,
- Notify the California Department of Social Services (CDSS), on or before January 1, 2024, in an email or other correspondence, whether it has adopted one of the suggested practices for family finding and, generally, whether the practice has been implemented. (WIC 309(e)(3))
- Defines “family finding” to mean conducting an investigation, including, but not limited to, through a computer-based search engine, to identify relatives and kin and to connect a child or youth, who may be disconnected from their parents, with those relatives and kin in an effort to provide family support and possible placement. If it is known or there is reason to know that the child is an Indian child, “family finding” also includes contacting the Indian child’s tribe to identify relatives and kin. (WIC 309(e)(3)(B)
- 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. (WIC 361.3(a))
- Requires, when placing a child in the home of a relative, an extended family member, or non-relative extended family member (NREFM) on a temporary basis, the court to consider the recommendations of the social worker based on the required assessment, including the results of a criminal records check and prior child abuse allegations, if any, before ordering that the child be placed with a relative or NREFM. (WIC 319(h)(3))
- Requires CDSS to provide technical assistance to encourage and facilitate the county placement agency’s evaluation of placement needs and the development of needed placement resources and programs. (WIC 16001.1)
- Requires the juvenile court to make full consideration of the proximity of a child’s natural parents to the potential foster care placement of that child in order to facilitate visitation and family reunification, and if possible, for the placement to be made in the home of a relative, unless the placement would not be in the best interest of the child. (Family Code Section [FAM] 7950(a))
- Requires placement, if possible, to be made in the home of a relative, unless the placement would not be in the best interest of the child, and requires diligent efforts to be made by an agency or entity to locate an appropriate relative. Requires the court, at any permanency hearing in which the court terminates reunification services, or at any post-permanency hearing for a child not placed for adoption, to find that the agency or entity has made diligent efforts to locate an appropriate relative and that each relative whose name has been submitted as a possible caretaker, either by the relative or by other persons, has been evaluated as an appropriate placement resource. (FAM 7950 (a)(1))
- Requires the court, at the initial petition hearing, to order the release of the child from custody unless a prima facie showing has been made that the child comes within Section 300, the court finds that continuance in the parent’s home is contrary to the child’s welfare, and any of the following circumstances exist:
- There is a substantial danger to the physical health of the child or the child is suffering severe emotional damage, and there are no reasonable means by which the child’s physical or emotional health may be protected without removing the child from the parent’s or guardian’s physical custody;
- There is substantial evidence that a parent of the child is likely to flee the jurisdiction of the court, and, in the case of an Indian child, fleeing the jurisdiction will place the child at risk of imminent physical damage or harm;
- The child has left a placement in which the child was placed by the juvenile court, or,
- The child indicates an unwillingness to return home, if the child has been physically or sexually abused by a person residing in the home. (WIC 319(c))
- Requires the court to also make a determination on the record, referencing the social worker’s report or other evidence relied upon, as to whether reasonable efforts were made to prevent or eliminate the need for removal of the child from their home, and whether there are available services that would prevent the need for further detention. Services to be considered for purposes of making this determination are case management, counseling, emergency shelter care, emergency in-home caretakers, out-of-home respite care, teaching and demonstrating homemakers, parenting training, transportation, and any other child welfare services authorized by CDSS. Requires the court to also review whether the social worker has considered whether a referral to public assistance services would have eliminated the need to take temporary custody of the child or would prevent the need for further detention. (WIC 319(f))
- Requires the court, if a court orders a child detained, to state the facts on which the decision is based, specify why the initial removal was necessary, reference the social worker’s report or other evidence relied upon to make its determination whether continuance in the home of the parent is contrary to the child’s welfare, order temporary placement and care of the child to be vested with the county child welfare department pending the specified hearing or further order of the court, and order services to be provided as soon as possible to reunify the child and their family, if appropriate. (WIC 319(g))
- Establishes, in federal law, the “Indian Child Welfare Act” (ICWA), which provides guidance to states regarding the jurisdictional requirements, proceedings of tribal courts, and custody proceedings involving the removal of Indian children from their parents. (25 United States Code, Ch. 21, Sections 1901 et seq.)
FISCAL EFFECT: According to the Senate Appropriations Committee analysis on May 8, 2023:
- CDSS: Staff notes unknown ongoing costs to CDSS, including hundreds of thousands for 2.0 additional Associate Governmental Program Analyst, one for the Family Centered Safety and Support Bureau to provide all-county support and technical assistance, as well as one for the Training Support Unit (General Fund). Additional costs may include CORE training for social workers and ongoing local assistance to counties.
- Local Costs: Unknown costs to counties in order for social workers to provide the detail required by the bill in their initial reports. To the extent the bill increases county costs already borne by a local agency for programs or levels of service mandated by the 2011 Realignment, the bill would apply to local agencies only to the extent that the state provides annual funding for the cost increases.
COMMENTS:
Background: Child Welfare Services (CWS) and Dependency Court Procedures. California’s CWS system was established with the goal of protecting youth from abuse and neglect and is designed to provide safety, health, and overall well-being of children. When a child is identified as being at risk of abuse or neglect, reports can be made to either law enforcement or a county child welfare agency. Often, these reports are submitted by mandated reporters who are legally required to report suspicion of child abuse or neglect due to their profession, such as a teacher or healthcare provider.
When a mandated reporter submits a report to either law enforcement or the county child welfare agency, a social worker determines whether the allegation is of suspected abuse, neglect, or exploitation, and creates a case plan which includes the provision of relevant services. The child's social worker and the court collaborate to evaluate and review the circumstances of each case, seeking either reunification or placement outside of the home as a way for the child to achieve permanency.
When a child is removed from the custody of their parent, they are temporarily placed within the jurisdiction of the child welfare system until a determination about the child’s welfare is made. Within 48 hours after a child is taken into temporary custody, the county social worker is required to file a petition with the court requesting that a detention hearing take place in order to determine if further detention of the child is necessary. If a petition to declare the child a dependent of the court is filed by the county social worker, then the detention hearing must be held within 48 hours of the petition being filed.
At the initial petition hearing, the court examines the child’s parents, or others who have relevant knowledge and hear the relevant evidence that the child, or the child’s parents, or their counsel desires to present. The social worker is required to report to the court on the reasons why the child has been removed from the parent’s, physical custody, the need, if any, for continued detention, the available services and the referral methods to those services that could facilitate the return of the child to the custody of the child’s parents, and whether there are any relatives who are able and willing to take temporary physical custody of the child.
This bill would require the social worker also to include information in their report to the court regarding any short-term and long-term harms to the child that may result from removal from their parent’s physical custody.
Once a child has been removed from the custody of their parents, a jurisdictional hearing is required to take place within 15 days. It is at the jurisdictional hearing that the court determines whether the allegations outlined in the social worker’s petition are true. If the allegations are deemed to be true, then the child is determined to be within the jurisdiction of the juvenile court and a dispositional hearing is required to be held within 60 days of the initial detention hearing in order to determine the permanent placement of the child.
The court also determines the parameters of the family reunification plan, which includes where and with whom the child will live, be it with relatives or in a foster family home. The reunification plan also can entail recommendations for parents such as parenting classes, anger management, counseling, substance abuse counseling and testing, sexual abuse counseling, parenting training, and anger management.
If the court orders a child to be placed outside of the home, the parent usually receives court-ordered family reunification services. Upon completion of the services, in addition to making any changes or improvements described in the case plan, the court may dismiss the child’s court case and the county welfare department case will also be closed. If a parent does not participate in the services set forth in the reunification plan, the court can terminate the services, and therefore change the reunification goal to one of finding a permanent home in an appropriate placement.
Except for limited circumstances, if the child is not returned to the parent’s custody at the 18-month permanency reviewing hearing, the juvenile court is required to terminate reunification services and set a hearing to terminate parental rights.
California's CWS programs are administered by the 58 individual counties with each county organizing and operating its own program of child protection based on local needs while adhering to state and federal regulations. When a child welfare case is open, counties are the primary governmental entity interacting with children and families when addressing issues of child abuse and neglect and are responsible, either directly or through providers, for obtaining or providing the interventions and relevant services to protect children and assist families with issues related to child abuse and neglect.
CDSS secures federal funding to support child welfare services programs, provides statewide best practices training for social workers, and conducts program regulatory oversight and administration, and is responsible for the development of policy while also providing direct services such as adoption placements.
As of April 1, 2023, there are 51,339 youth between birth and 20 years old in foster care.
Continuum of Care Reform (CCR). Over the last several years California began reforming the CWS system to improve placement and treatment options for youth in foster care, known as the Continuum of Care Reform and most often referred to as CCR. AB 403 (Stone), Chapter 773, Statutes of 2015, was enacted followed by a series of bills (see prior and related legislation below) that helped with the overall implementation. AB 403, sponsored by CDSS, sought to improve outcomes for children and youth served by the CWS system by working to ensure that foster youth have their day-to-day physical, mental, and emotional needs met, that they have the opportunity to grow up in permanent and supportive homes, and have the opportunities necessary to become self-sufficient and successful adults.
CCR also was enacted for the purposes of reducing the use of congregate care as a frequently used placement option for youth, as data have demonstrated that youth placed in congregate care settings experience poorer outcomes than youth placed in family settings. Research has shown that youth who experience group placements have poorer educational outcomes than youth in family foster care, including lower test scores in basic English and math, are less likely to graduate high school, when compared to youth in family foster care, are at risk of physical abuse when they are placed in group settings, and lack opportunities to develop critical life skills and positive relationships.
Family Finding and the Resource Family Approval Process (RFA). As part of the reforms set forth by CCR, CDSS and counties have been directed to invest time and resources into “family finding” which can include NREFMs. Family finding allows children to remain in a home with someone they know and are more comfortable, which as described above, are beneficial to the child. Existing law requires the juvenile court, during the dispositional hearing for a dependent child, to make a finding that the child’s social worker has exercised due diligence in identifying, locating and notifying the child’s relatives.
Once family, including NREFMs, have been identified, the RFA process can begin. RFA is designed to be a unified, family-friendly, and child-centered process that combines elements of foster parent licensing, relative approval, and adoption/guardianship approval processes. The RFA process includes a psychosocial assessment, home environment check, and training for all resource families, including relatives, in order to ensure that caregivers are equipped to best meet the needs of youth in foster care. RFA is also a route to direct permanency for caregivers who wish to adopt or be guardians of youth in care, as the RFA process includes elements required by both the adoption and guardianship processes.
Effective January 1, 2017, all new relative home placements were required to meet RFA standards and counties are encouraged to consider the likelihood that a relative will be able to meet those standards when evaluating that possibility. Existing law also provides for a process to place a child with a relative, either on an emergency basis or based on a compelling reason, prior to full RFA approval.
While the removal of a child from their home can be a traumatic event, placement with known relatives and NREFMs can help to alleviate some of the disruptions that can be caused by placement with a family who is unknown to the child.
Other States. According to the author, eight states and Washington, D.C. require judges to consider the harms to a child when deciding whether removal is necessary. Washington D.C., New York, and Iowa, require courts to assess the harms of removal in deciding whether to separate a child from their family. New Mexico and South Carolina include the harm of removal in their reasonable efforts criteria and Hawaii, Minnesota, Nebraska, and Connecticut have issued policies or guidance that emphasize family preservation.
Currently, there is no statutory requirement for the juvenile courts in California to take into consideration the trauma a child may experience when removed from their home. While consideration of a child’s best interest can be hard to define and is ultimately subjective, this bill allows for more information to be presented to the judge tasked with making this difficult decision.
Author’s Statement: According to the author, “There is no disputing that children suffer harm when they are separated from their parents. The highly traumatic experience of family separation can cause irreparable harm, disrupting a child's brain architecture and affecting their short- and long-term health. [This bill] is sponsored by the very judges who are charged with this most difficult task. [This bill] seeks to reduce the harm a child must endure by requiring a trauma informed analysis be provided to judges in advance of any removal decision. Judges will make a more informed decision in the best interest of the child when given the requested analysis they need to weigh what the safest and healthiest outcome is given all that is happening in the life of the child before them.
“[This bill] will require the court to consider the trauma a child will experience as a result of removal from parental care and weigh that harm against the potential risk of non-removal. The trauma analysis will include connections not only to family, but also to school and community. Judges will have a better opportunity to mitigate harms by having this additional context at the time of deciding how best to proceed. The judge will also be able to ask that the social worker’s harm reduction, trauma informed report include suggested mitigation solutions to the impact of removal. Eight states and Washington D.C. require the courts to assess the harm of removal, or include the harm of removal and emphasis on family preservation in their reasonable efforts criteria or agency guidance. It is time that California follows their lead and requires our own trauma-informed harm reduction model, in so doing, we can better protect children and their families across our great state.”
Need for this bill: The provisions of this bill seek to require the court to consider the trauma a child could experience as a result of removal from their home due to neglect or abuse, which, depending on the placement, can create disruptions due to a change in schools, reduced contact with parents and siblings, and loss of neighborhood friends and supports. This bill does not affect how the court arrives at their decision to remove a child from their home or to return them to their parent’s custody, but does require the social worker to include an analysis in their report that considers the short-term and long-term harms to the child that may result from their removal, and requires the court to set forth any measures that can be taken to alleviate disruption and minimize the harms of removal for the child.
Equity Implications: The proportions of Black and Native American youth in foster care are around four times larger than the proportions of Black and Native American youth in California overall. The Legislative Analyst’s Office (LAO) cites recent research on cumulative child welfare involvement of California’s 1999 birth cohort that found nearly one in two Black and Native American children experienced some level of child welfare involvement by the time they turned 18 (compared to around 29% of Latino children, 22% of White children, and 13% of Asian/Pacific Islander children). Data also confirm that the Black, Indigenous, and People of Color (BIPOC) population is less likely to receive in-home services meant to address underlying causes and prevent removal. Because of this, BIPOC children appear in court much more often, and are therefore placed into system care at a higher percentage.
The LAO also notes that racial and ethnic disproportionalities and disparities are present within initial allegations and persist at all levels of the system—becoming the most pronounced for youth in care.
Poverty also plays a significant role in exacerbating racial disparities, particularly when it is conflated with neglect, or creates circumstances that may lead to neglect. Research shows that inadequacy of income, more than any other factor, constitutes the reason that children are removed. This is significant in the context of race because Black children are nearly three times more likely to live in poverty than their White counterparts. As such, Black families tend to have more contact with government systems, leaving them particularly vulnerable to additional state intervention and increased visibility to child protection agencies.
The removal of BIPOC children from their communities inflicts an additional, distinct trauma. Removal from one’s family is harrowing enough, and BIPOC children are often removed not just from their family but also their entire community, affecting their sense of identity and cultural belonging. For children belonging to these ethnic groups, ethnicity forms an important part of their identity and removal from their communities is devastating to their development, sense of self, and cultural identity.
This bill attempts to mitigate some of these underlying factors and structures by requiring the court to consider the particular circumstances and trauma a child could experience as a result of removal from their home. By providing the courts with this information, judges can weigh their decisions from a more informed perspective of the specific circumstances of each child, in an effort to ensure that all foster youth are appropriately placed in safe and loving environments.
Policy Considerations: This bill appropriately requires social workers to provide the court information regarding the short-term and long-term harms to the child that may occur as a result of removal, including the least disruptive alternatives to returning a child to their parent, and other measures that may be taken to alleviate disruption and minimize the harms of removal. In seeking to balance the benefits of removing a child from an unsafe environment with the harm that can come from removal, it is equally important to ensure that these decisions are made through the lens of finding the best possible placement for the child, before prioritizing the need to minimize disruptions. While disruptions to any child’s school and friendships should absolutely be a priority and minimized, the consideration of a child’s overall well-being, and therefore the best placement option, should be the focal point for making the difficult decision of whether to allow a child to remain in a home where there has been neglect or abuse. The Committee suggests re-framing this provision to clarify that the priority is to find the best placement for a child.
Additionally, this bill requires the court to consider, in determining whether staying in the parent’s home is contrary to the child’s welfare, to review the social worker’s report and any other evidence, including the child’s attitude toward removal. Because the characterization of one’s attitude is highly subjective, the Committee suggests striking this word in favor of one that would allow the social worker to more accurately include fact-based information in their report.
While this bill does not explicitly change the standard for how a court decides whether to remove or return a child, the lack of specificity in the inclusion of this trauma-informed analysis could tip the scales in favor of the court being less inclined to remove a child from their home, regardless of any harm that may exist if they stay. While the addition of more information should not lead the court to favor one decision over another, and each analysis will be unique to circumstances of each child, the Committee suggests clarifying that removal determinations will continue to be based on the facts of each specific individual.
This bill also requires the court to consider various factors in making the determination to remove a child from their home, including the disruption to the child’s schooling, social relationships, and physical or emotional health that may result from placement out of the home. In recognition of tribal sovereignty, the Committee suggests including language to clarify that a child’s connection to their tribal community should also be considered.
Proposed Committee Amendments:
In order to address the above policy considerations, the Committee proposes the author take the following amendments:
On page 3, on line 24, after “the” insert “best placement option, including an assessment of ”
On page 5, on line 8, strike “attitude towards” and insert “perspective on” and after “and” insert “a description of”
On page 5, on line 15, after “home” strike “.” and insert “, and in the case of an Indian child, the child’s connection to their tribal community.”
On page 5, on line 26, after “the placement” insert “most appropriate placement, and, if there were less-disruptive alternatives, why those alternatives were not selected”
On page 6, on line 29, after “further detention.” insert “This determination shall apply to each child individually, and considerations shall be tailored to the individual child.”
Double referral: This bill passed out of the Assembly Judiciary Committee on June 20, 2023, with a 10-0 vote.
RELATED AND PRIOR LEGISLATION:
SB 824 (Ashby) of the current legislative session, expands the authority of CDSS to grant criminal record exemptions during the RFA process to include NREFMs. Allows youth who were subject to an order for placement with a relative, regardless of the status of any criminal record exemption or RFA, to be eligible to receive aid in the form of state-funded Kinship Guardianship Assistance Payment Program. Adds the home of a NREFM to the placements that would allow a youth to be eligible for Aid to Families with Dependent Children-Foster Care (AFDC-FC), and expands eligibility for the Adoption Assistance Program. SB 824 is set to be heard by the Assembly Appropriations Committee on July 12, 2023.
SB 463 (Wahab) of the current legislative session, eliminates the evidentiary presumption in juvenile court that a parent’s lack of participation or progress in a treatment program endangers the child, for purposes of determining whether the child should be returned to the parent’s custody. SB 463 is set to be heard by the Assembly Human Services Committee on July 11, 2023.
SB 1021 (Durazo) of 2020, would have, in the event a juvenile court ordered a child detained, prohibited the court from restricting visitation between a parent and child any more than necessary to ensure the child’s safety and well-being and would have specified facts that do not constitute a basis for requiring supervised visits; and would have, where a court orders a child into foster care, required the court to consider specified factors in making a visitation plan.
SB 1021 was held in the Senate Judiciary Committee as a result of COVID-19-related bill limits.
AB 3176 (Waldron), Chapter 833, Statutes of 2018, revised a range of dependency-related statutes to reflect changes to ICWA, including the statute setting forth the procedures and requirements for the initial hearing on a dependency petition.
AB 403 (Stone), Chapter 773, Statutes of 2015, AB 1997 (Stone), Chapter 612, Statutes of 2016, AB 404 (Stone), Chapter 732, Statutes of 2017, AB 1930 (Stone), Chapter 910, Statutes of 2018, AB 819 (Stone), Chapter 777, Statutes of 2019, and AB 2944 (Stone), Chapter 104, Statutes of 2020, implemented CCR to better serve children and youth in California’s CWS system.
REGISTERED SUPPORT / OPPOSITION:
Support
California Judges Association (Co-Sponsor)
Juvenile Court Judges of California (Co-Sponsor)
A New Way of Life Re-Entry Project
ACLU California Action
California Catholic Conference
California Lawyers Association, Family Law Section
Children's Bureau of Southern California
County of Santa Clara
East Bay Family Defenders
Los Angeles Dependency Lawyers, INC.
National Center for Youth Law
National Center to Advance Peace and Equity for Children, Youth, and Families
Public Counsel
Sayra & Neil Meyerhoff Center for Families, Children & the Courts
Upend Movement
Western Center on Law & Poverty
Young Women's Freedom Center
Opposition
None on file
Analysis Prepared by: Jessica Langtry / HUM. S. / (916) 319-2089
Date of Hearing: June 20, 2023
ASSEMBLY COMMITTEE ON JUDICIARY
Brian Maienschein, Chair
SBPCA Bill Id:SB 578
Author:(Ashby) – As Amended Ver:April 13, 2023
PROPOSED CONSENT
SENATE VOTE: 40-0
SUBJECT: JUVENILE COURT: DEPENDENTS: REMOVAL
KEY ISSUE: IN A CHILD WELFARE CASE, SHOULD A SOCIAL WORKER BE REQUIRED TO REPORT ON, AND SHOULD THE JUVENILE COURT BE REQUIRED TO CONSIDER, THE SHORT-TERM AND LONG-TERM HARMS TO A CHILD THAT MAY RESULT FROM THE CHILD BEING REMOVED FROM THE CUSTODY OF THEIR PARENT, GUARDIAN, OR –WHEN RELEVANT—AN INDIAN CUSTODIAN?
SYNOPSIS
While removing children from the custody of their parents, guardians, or Indian caregivers is proven to be traumatic to children, the child welfare system tends to err on the side of removal as the safest approach to protect children from harm. Studies have shown that while the child welfare system tends to err on the side of removal, removal itself can cause irreparable harm, permanently affecting their IQ, brain development, and fight-or-flight response system. Relatively recent research shows that the impact of removing children from their homes may be worse than leaving them in suboptimal homes.
This bill, sponsored by the California Judges Association, requires a juvenile court to make a trauma-informed analysis of the negative consequences that a child likely will experience as a result of removal from their home, prior to ordering removal. It ensures that social workers include more information in their predisposition reports about the short-term and long-term harms to the child that may result from their removal from the custody of their parent, guardian, or Indian custodian. It also requires a juvenile court, when determining whether continuance in the parent’s or guardian’s home is contrary to the child’s welfare, to consider information of short-term and long-term harms to the child that may result from the continued removal. Finally, it requires the juvenile court, if the court finds that removal of a child or Indian child is necessary, to make a determination of its findings, referencing the social worker’s report and other evidence relied upon, and specify the measures to be taken to alleviate the disruption and minimize the harms of removal with the least disruptive alternatives in a written order or on the record. The bill does not change the grounds for a juvenile court to exercise jurisdiction in a child welfare matter; nor does it change the criteria for a court to order that a child be removed from, or returned to, the custody of their parent, guardian, or Indian custodian. Rather, it seeks to ensure that courts make these crucial decisions in a more careful, deliberate, and trauma-informed manner for the short and long-term benefit of the child.
The bill is supported by a large number of legal, civil rights, and youth advocacy organizations and has no opposition on file. Should the bill pass this Committee, it would be referred to the Assembly Human Services Committee.
SUMMARY: Requires a social worker to report on, and a juvenile court to consider, the potential harms that result from removing a child from their parent, guardian, or Indian custodian’s custody. Specifically, this bill:
- Requires the social workers’ predisposition reports to contain information regarding short-term and long-term harms to the child that may result from their removal from the custody of their parent, guardian, or Indian custodian. This includes, but is not limited to:
- The child’s attitude toward removal and the existing relationship between the child and their parents, guardians, or Indian custodians.
- The existing relationship between the child and other members of the household, including, but not limited to, siblings.
- The disruption to the child’s schooling, social relationships, and physical or emotional health that may result from placement out of the home.
- Measures to alleviate the disruption and minimize the harms of removal with the least disruptive alternatives.
- The steps taken to consult with the tribe and the outcome of that consultation, if it is known or there is reason to know the child is an Indian child.
- Requires the court, in making the determination on whether continuance in the parent’s or guardian’s home is contrary to the child’s welfare, to consider the short-term and long-term harms to the child that may result from the continued removal. Requires the court, in making this determination, to review the social worker’s report and any other evidence in considering factors that include, but are not limited to, all of the following:
- The child’s attitude towards removal and the existing relationship between the child and their parents, guardians, or Indian custodians.
- The existing relationship between the child and other members of the household, including, but not limited to, siblings.
- The disruption to the child’s schooling, social relationships, and physical or emotional health that may result from placement out of the home.
- Requires the court, if it finds that removal of a child from a parent’s or guardian’s home is necessary, to make a determination of its findings, referencing the social worker’s report and other evidence relied upon, and specify the measures to be taken to alleviate the disruption and minimize the harms of removal with the least disruptive alternatives in a written order or on the record.
EXISTING LAW:
- Establishes, in federal law, the Indian Child Welfare Act (ICWA), which provides guidance to states regarding the jurisdictional requirements, proceedings of tribal courts, and custody proceedings involving the removal of Indian children from their parents. (25 U.S.C., Ch. 21, Sections 1901 et seq.)
- Establishes the juvenile court, which is intended to provide for the protection and safety of the public and minors falling under its jurisdiction. (Welfare & Institutions Code Sections 202, 245. All further statutory references are to this code, unless otherwise indicated.)
- Provides that a minor may become a dependent of the juvenile court and be removed from the custody of their parent or guardian on the basis of enumerated forms of abuse or neglect. (Section 300 (a)-(j).)
- Provides that the purpose of the juvenile court and the dependency system is to provide the maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm. This safety, protection, and physical and emotional well-being may include a provision of a full array of social and health services to help the child and family and to prevent the reabuse of children. (Section 300.2.)
- Provides that a proceeding to declare a child to be a dependent of the juvenile court is commenced when a social worker files a petition with the juvenile court. (Section 325.)
- If a child has been removed from the custody of their parent without a warrant and remains detained, pursuant to specified requirements, the child must be released within 48 hours, excluding nonjudicial days, unless a petition to declare the child a dependent of the juvenile court is filed. (Sections 305, 309, 313.)
- If it is known or there is reason to know that the child taken into custody is an Indian child, the social worker must comply with additional requirements consistent with the ICWA. (Sections 224, 224.1, 305.5.)
- Requires an initial hearing be held on a petition to declare a child to be a dependent of the juvenile court. (Section 319.)
- Requires a social worker to report information at the initial hearing as follows:
- For all children, the social worker must report to the court on the reasons the child was removed from the custody of their parent, guardian, or Indian custodian; the need, if any, for further detention; the available services and referral methods that could facilitate the return of the child to their parent, guardian, or Indian custodian; and whether there are any relatives willing and able to take temporary physical custody of the child. (Section 319 (b).)
- If it is known or there is reason to know that the child is an Indian child, the report must include additional information, including efforts taken to assist the parent, guardian, or Indian custodian so the Indian child may safely be returned to their custody. (Section 316 (b)(1)-(9).)
- At an initial hearing where the child has already been detained, requires the court to order the release of the child from custody unless a prima facie showing has been made that the child is within the jurisdiction of the juvenile court, the court finds that the continuance in the parent’s home is contrary to the child’s welfare, and any of the following circumstances exist:
- There is a substantial danger to the physical health of the child or the child is suffering severe emotional damage, and there are no reasonable means by which the child’s physical or emotional health may be protected without removing the child from the parent’s or guardian’s custody.
- There is substantial evidence that a parent or guardian is likely to flee the jurisdiction of the court.
- The child has left a placement in which the child was placed by the juvenile court.
- The child indicates an unwillingness to return home, if the child has been physically or sexually abused by a person residing in the home. (Section 319 (c).)
- If the child is an Indian child, imposes limitations in addition to those in 8) for a court to order that the Indian child remain in detention:
- When the court finds that there is substantial evidence that a parent or Indian custodian is likely to flee the jurisdiction, the court must also find that fleeing the jurisdiction will place the child at risk of imminent physical damage or harm.
- Under all circumstances, the court may detain the Indian child only if it also finds that detention is necessary to prevent imminent physical damage or harm and must state the facts supporting the finding on the record. (Section 319 (c), (d).)
- At an initial hearing where a child has not yet been detained, authorizes a court to order the child to be detained, provided that the court does all of the following:
- State the facts on which the decision was based.
- Specify why the initial removal was necessary.
- Reference the social worker’s report or other evidence relied upon to make its determination whether continuance in the home of the parent or legal guardian is contrary to the child’s welfare.
- Make orders addressing the child’s placement and care and the provision of reunification services, as appropriate. (Section 319 (g).)
- Establishes, for children who remain out of or are removed from their parent’s or guardian’s custody after the initial hearing, a series of review hearings at six-month intervals at which the court may return the child to their parent’s or guardian’s custody or continue the child’s placement outside their parent’s or guardian’s home; these review hearings may culminate in a permanency hearing that terminates parental rights and a permanent placement for the child. (Sections 361.5, 366.21, 366.22, 366.25.)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: While removing children from the custody of their parents, guardians, or Indian caregivers is proven to be traumatic to children, the child welfare system tends to err on the side of removal as the safest approach to protect children from harm. This bill, sponsored by the California Judges Association, requires a juvenile court to make a trauma-informed analysis of the negative consequences that a child likely will experience as a result of removal from their home, prior to ordering removal. According to the author:
There is no disputing that children suffer harm when they are separated from their parents. The highly traumatic experience of family separation can cause irreparable harm, disrupting a child's brain architecture and affecting their short- and long-term health. . . . SB578 seeks to reduce the harm a child must endure by requiring a trauma informed analysis be provided to judges in advance of any removal decision. Judges will make a more informed decision in the best interest of the child when given the requested analysis they need to weigh what the safest and healthiest outcome is given all that is happening in the life of the child before them.
. . . Judges will have a better opportunity to mitigate harms by having this additional context at the time of deciding how best to proceed. The judge will also be able to ask that the social worker’s harm reduction, trauma informed report include suggested mitigation solutions to the impact of removal. Eight states and Washington D.C. require the courts to assess the harm of removal, or include the harm of removal and emphasis on family preservation in their reasonable efforts criteria or agency guidance. It is time that California follows their lead and requires our own trauma-informed harm reduction model, in so doing, we can better protect children and their families across our great state.
Overview of child welfare services and juvenile dependency court. The dependency process begins when child abuse, neglect, or abandonment is reported to the local child welfare agency. A social worker with the child welfare agency investigates the allegation to determine if the child requires protection in order to ensure their safety. If so, the child welfare agency files a petition with the juvenile court to make the child a dependent of the court. If necessary, the social worker will remove the child from their home and take the child into protective custody. As of October 1, 2022, more than 74,500 children were receiving services from county child welfare agencies in California. As of that date (the most recent available), 11,512 children were placed in foster homes. (California Child Welfare Indicators Project, Pont in Time/In Care, available at https://ccwip.berkeley.edu/childwelfare/index/r.)
When an abused or neglected child is taken from the custody of their parents, social workers are required to release a child temporarily to a responsible parent, or guardian, unless it is not safe to do so. Social workers may also release a child, in order of priority, into the custody of a relative, a nonrelative extended family member (NREFM) (defined as any adult caregiver who has established a familial or mentoring relationship with the child), or place the child in a licensed foster home or group home. Prior to placing a child in the home, the social worker must visit the home to ascertain the appropriateness of the placement and run criminal records check on all persons over 18 years of age living in the home, or any other person who may have significant contact with the child, including those with a familial or intimate relationship with any person living in the home. If the criminal records check shows that a person has been convicted of certain crimes, mostly violent felonies, the child may not be placed in the home. If the person has been convicted of a crime for which there is a criminal records exemption, the child cannot be placed in the home unless the county does, in fact, grant the exemption.
These measures are intended to protect the child from the harm of living in an unsafe home; however, as relatively recent research (see below) shows, removing a child from their home can also cause serious short-term and long-term harm to the child. Not only is the removal process itself traumatic, but children placed with a resource family may be forced to change schools or sports teams, not be able to spend time with friends, and lose the comfort of a beloved pet. (Trivedi, The Harm of Child Removal, 43 N.Y.U. Rev. of Law & Social Change 523, 526 (2019).) Without proper safeguards, therefore, removal can cause more harm than good and should be a last resort in terms of seeking to protect a child from harm.
Harms Caused by Removal. Studies have shown that while the child welfare system tends to err on the side of removal, removal itself can cause irreparable harm. According to the American Academy of Pediatrics, removal from parents can disrupt a child’s brain architecture and negatively impact their health. (See William Wan, “What separation from parents does to children: ‘The effect is catastrophic,’” (June 18, 2018) Washington Post, available at https://www.washingtonpost.com/national/health-science/what-separation-from-parents-does-to-children-the-effect-is-catastrophic/2018/06/18/c00c30ec-732c-11e8-805c-4b67019fcfe4_story.html?noredirect=on.)
Their heart rate goes up. Their body releases a flood of stress hormones such as cortisol and adrenaline. Those stress hormones can start killing off dendrites — the little branches in brain cells that transmit messages. In time, the stress can start killing off neurons and — especially in young children — wreaking dramatic and long-term damage, both psychologically and to the physical structure of the brain. (Ibid.)
These immediate physical and psychological experiences have long-term and irreversible catastrophic impacts on children:
The children, who had been separated from their parents in their first two years of life, scored significantly lower on IQ tests later in life. Their fight-or-flight response system appeared permanently broken. . . . Unlike other parts of the body, most cells in the brain cannot renew or repair themselves. (Wan, “What separation from parents does to children: ‘The effect is catastrophic,’” supra.)
Why? Because of the critical bonds formed between parental caregivers and their children:
The reason child-parent separation has such devastating effects is because it attacks one of the most fundamental and critical bonds in human biology.
From the time they are born, children emotionally attach to their caregiver and vice versa, said Lisa Fortuna, medical director for child and adolescent psychiatry at Boston Medical Center. . . . A child’s sense of what safety means depends on that relationship. And without it, the parts of the brain that deal with attachment and fear — the amygdala and hippocampus — develop differently. The reason such children often develop PTSD later in life is that those neurons start firing irregularly, Fortuna said. “The part of their brain that sorts things into safe or dangerous does not work like it’s supposed to. Things that are not threatening seem threatening,” she said. (Wan, “What separation from parents does to children: ‘The effect is catastrophic,’” supra.)
The impact of removing children from their homes may be worse than leaving them in suboptimal homes.
Even when children are in the care of parents who may not be able to meet their needs or to keep them safe, they still organize their behaviors and thinking around these relationships and go at great lengths to maintain them,’ said Carmen Rosa Noroña, Child Trauma Clinical Services and Training Lead of Boston Medical Center’s Child Witness to Violence Project. Moreover, when these attachment relationships are suddenly subverted and there is no other adult who can help the child make meaning—or a story—of what has happened, the child might experience not only a sense of confusion and terror but might also blame himself or herself for losing the parent. (Allison Eck, “Psychological Damage Inflicted by Parent-Child Separation is Deep, Long-Lasting,” NOVA (June 20, 2018), available at https://www.pbs.org/wgbh/nova/article/psychological-damage-inflicted-by-parent-child-separation-is-deep-long-lasting/.)
Furthermore, the weight of social scientific evidence suggests that children who are removed from their homes based on allegations of abuse or neglect often face more abuse and neglect in foster care. “This is anathema to a system whose stated goal is child safety.” (Trivedi, The Harm of Child Removal, supra, at p. 544.) To avoid this harmful and cruel result, several states have implemented measures requiring juvenile courts to consider the likely harm of removal and, if removal is necessary, measures that can be taken to alleviate the disruption to the child. The State of New Mexico identifies the harm of removal as a specific factor in a court’s decision whether reasonable efforts have been made to prevent removal of the child. (Id. at p. 566.) Meanwhile, Hawaii requires that the service plan be crafted with the family and that “[e]very reasonable opportunity should be provided to help the child’s legal custodian to succeed in remedying the problems that put the child at substantial risk of being harmed.” (Id. at p. 567.) While several other states have issued policies or agency guidance that emphasize family preservation, New York and the District of Columbia are the only states that overtly require government officials to consider the harm of removal in their substantive removal statute. (Ibid.)
The bill ensures that social workers include more information in their predisposition reports about the short-term and long-term harms to the child that may result from their removal from the custody of their parent, guardian, or Indian custodian. This includes, but is not limited to information about the child’s attitude toward removal and the disruption to the child’s schooling, social relationships, and physical or emotional health that may result from placement out of the home. The bill also requires a juvenile court, when determining whether continuance in the parent’s or guardian’s home is contrary to the child’s welfare, to consider information in the short-term and long-term harms to the child that may result from the continued removal. Finally, it requires the juvenile court, if the court finds that removal of a child or Indian child is necessary, to make a determination of its findings, referencing the social worker’s report and other evidence relied upon, and specify the measures to be taken to alleviate the disruption and minimize the harms of removal with the least disruptive alternatives in a written order or on the record.
It is important to note that the bill does not change the grounds for a juvenile court to exercise jurisdiction in a child welfare matter; nor does it change the criteria for a court to order that a child be removed from, or returned to, the custody of their parent, guardian, or Indian custodian. Rather, it seeks to ensure that courts make these crucial decisions in a more careful, deliberate, and trauma-informed manner for the short and long-term benefit of the child.
ARGUMENTS IN SUPPORT: The California Judges Association and the Juvenile Court Judges of California, write in support of the bill that, “Juvenile court judges make critical decisions concerning the well-being of our state’s most vulnerable children. While our judges take the harm that children may experience when removed from parental custody into consideration, no statute specifically addresses how the court should consider this harm. SB 578 seeks to provide some guidelines for the court to consider as well as asking the court to consider methods that might reduce that trauma.”
REGISTERED SUPPORT / OPPOSITION:
Support
California Judges Association (sponsor)
A New Way of Life Re-entry Project
ACLU California Action
All Of Us Or None Orange County
California Catholic Conference
California Families Rise
California Lawyers Association, Family Law Section
Children's Bureau of Southern California
County of Santa Clara
Dependency Legal Services
Drug Policy Alliance
East Bay Family Defenders
JMACforFamilies
Legal Services for Prisoners With Children
Los Angeles Dependency Lawyers, INC.
National Center for Youth Law
National Center to Advance Peace and Equity for Children, Youth, and Families
National Coalition for Child Protection Reform
Opioid Policy Institute
Parents Against Cps/court Corruption
Pregnancy Justice
Public Counsel
Sayra & Neil Meyerhoff Center for Families, Children & the Courts
Starting Over, INC.
Upend Movement
Young Women's Freedom Center
Opposition
None on file
Analysis Prepared by: Alison Merrilees / JUD. / (916) 319-2334
SENATE RULES COMMITTEE Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | SB 578 |
THIRD READING
Bill No: SB 578
Author: Ashby (D), et al.
Amended: 4/13/23
Vote: 21
SENATE JUDICIARY COMMITTEE: 10-0, 4/11/23
AYES: Umberg, Wilk, Allen, Ashby, Durazo, Laird, McGuire, Min, Niello, Wiener
NO VOTE RECORDED: Stern
SENATE HUMAN SERVICES COMMITTEE: 5-0, 4/24/23
AYES: Alvarado-Gil, Ochoa Bogh, Hurtado, Menjivar, Wahab
SENATE APPROPRIATIONS COMMITTEE: 11-0, 5/18/23
AYES: Portantino, Jones, Ashby, Bradford, Seyarto, Wahab, Wiener
SUBJECT: Juvenile court: dependents: removal
SOURCE: California Judges Association
DIGEST:
This bill requires a social worker to report on, and a juvenile court to consider, the potential harms that may result from removing a child from their parent, guardian, or Indian custodian’s custody; and, if the child is or there is reason to know the child is an Indian child, requires the social worker to report on what efforts have been made to contact the child’s tribe.
ANALYSIS: Existing federal law establishes the Indian Child Welfare Act (ICWA), which provides guidance to states regarding the jurisdictional requirements, proceedings of tribal courts, and custody proceedings involving the removal of Indian children from their parents. (25 U.S.C., ch. 21, §§ 1901 et seq.)
Existing state law:
- Establishes the juvenile court, which is intended to provide for the protection and safety of the public and minors falling under its jurisdiction. (Welf. & Inst. Code, §§ 202, 245.)
- Provides that a minor may become a dependent of the juvenile court and be removed from the custody of their parent or guardian[1] on the basis of enumerated forms of abuse or neglect. (Welf. & Inst. Code, § 300(a)-(j).)
- Provides that the purpose of the juvenile court and the dependency system is to provide the maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm. This safety, protection, and physical and emotional well-being may include provision of a full array of social and health services to help the child and family and to prevent the reabuse of children. (Welf. & Inst. Code, § 300.2.)
- Provides that a proceeding to declare a child to be a dependent of the juvenile court is commenced when a social worker files a petition with the juvenile court. (Welf. & Inst. Code, § 325.)
- A social worker may file a petition while the child remains in the custody of their parent. (Welf. & Inst. Code, § 325.)
- If a child has been removed from the custody of their parent without a warrant and remains detained, pursuant to specified requirements, the child must be released within 48 hours, excluding nonjudicial days, unless a petition to declare the child a dependent of the juvenile court is filed. (Welf. & Inst. Code, §§ 305, 309, 313.)
- If it is known or there is reason to know that the child taken into custody under 4(b) is an Indian child, the social worker must comply with additional requirements consistent with the ICWA. (Welf. & Inst. Code, §§ 224, 224.1, 305.5.)
- Requires an initial hearing must be held on a petition to declare a child to be a dependent of the juvenile court. (Welf. & Inst. Code, § 319.)
- Requires a social worker to report information at the initial hearing as follows:
- For all children, the social worker must report to the court on the reasons the child was removed from the parent or Indian custodian’s physical custody, the need, if any, for further detention, the available services and referral methods that could facilitate the return of the child to their parent or Indian custodian’s custody, and whether there are any relatives willing and able to take temporary physical custody of the child. (Welf. & Inst. Code, § 319(b).)
- If it is known or there is reason to know that the child is an Indian child, the report must include additional information, including efforts taken to assist the parents or Indian custodians so the Indian child may safely be returned to their custody. (Welf. & Inst. Code, § 316(b)(1)-(9).)
- Requires, at an initial hearing where the child has already been detained, the court to order the release of the child from custody unless a prima facie showing has been made that the child is within the jurisdiction of the juvenile court, the court finds that the continuance in the parent’s home is contrary to the child’s welfare, and any of the following circumstances exist:
- There is a substantial danger to the physical health of the child or the child is suffering severe emotional damage, and there are no reasonable means by which the child’s physical or emotional health may be protected without removing the child from the parent’s custody.
- There is substantial evidence that a parent is likely to flee the jurisdiction of the court.
- The child has left a placement in which the child was placed by the juvenile court.
- The child indicates an unwillingness to return home, if the child has been physically or sexually abused by a person residing in the home. (Welf. & Inst. Code, § 319(c).)
- Imposes, if the child is an Indian child, limitations in addition to those in 7) for a court to order that the Indian child remain in detention:
- When the court finds that there is substantial evidence that a parent or Indian custodian is likely to flee the jurisdiction, the court must also find that fleeing the jurisdiction will place the child at risk of imminent physical damage or harm.
- Under all circumstances, the court may detain the Indian child only if it also finds that detention is necessary to prevent imminent physical damage or harm and must state the facts supporting the finding on the record. (Welf. & Inst. Code, § 319(c), (d).)
- Authorizes, at an initial hearing where a child has not yet been detained, a court to order the child to be detained, provided that the court does all of the following:
- States the facts on which the decision was based.
- Specifies why the initial removal was necessary.
- References the social worker’s report or other evidence relied upon to make its determination whether continuance in the home of the parent or legal guardian is contrary to the child’s welfare.
- Makes orders addressing the child’s placement and care and the provision of reunification services, as appropriate. (Welf. & Inst. Code, § 319(g).)
- Establishes, for children who remain out of or are removed from their parent’s custody after the initial hearing, a series of review hearings at six-month intervals at which the court may return the child to their parent’s custody or continue the child’s placement outside their parent’s home; these review hearings may culminate in a permanency hearing that terminates parental rights and a permanent placement for the child. (Welf. & Inst. Code, §§ 361.5, 366.21, 366.22, 366.25.)
This bill:
- Requires a social worker, in their report to the court prior to the initial hearing on whether to remove a child from, or keep a child out of, their parent or Indian custodian’s custody, to include:
- Information regarding the short-term and long-term harms that may result from the child’s removal from custody, including, but not limited to, the factors set forth in 2)a)-c), as well as measures to alleviate the disruption and minimize the harms of removal with the least disruptive alternatives.
- If it is known or there is reason to know the child is an Indian child, the steps taken to consult with the tribe and the outcome of the consultation.
- Requires a court, as part of its determination as to whether continuance in the parent’s home is contrary to the child’s welfare at the initial hearing, to consider the short-term and long-terms harms that may result from the continued removal. In making this determination, the court shall review the social worker’s report and any other evidence in considering factors that include, but are not limited to:
- The child’s attitude towards removal and the existing relationship between the child and their parent or Indian custodian.
- The existing relationship between the child and other members of the household, including, but not limited to, siblings.
- The disruption to the child’s schooling, social relationships, and physical or emotional health that may result from placement out of the home.
- Requires a court, if it finds at the initial hearing that removal is necessary, to make a determination of its findings, referencing the social worker’s report and other evidence relied upon, and specify the measures to be taken to alleviate the disruption and minimize the harms of removal with the least disruptive alternatives in a written order or on the record.
Comments
Author’s statement
There is no disputing that children suffer harm when they are separated from their parents. The highly traumatic experience of family separation can cause irreparable harm, disrupting a child's brain architecture and affecting their short- and long-term health. SB 578 is a bill sponsored by the very judges who are charged with this most difficult task. SB 578 seeks to reduce the harm a child must endure by requiring a trauma informed analysis be provided to judges in advance of any removal decision. Judges will make a more informed decision in the best interest of the child when given the requested analysis they need to weigh what is the safest and healthiest outcome given all that is happening in the life of the child before them.
SB 578 will require the court to consider the trauma a child will experience as a result of removal from parental care and weigh that harm against the potential risk of non-removal. The trauma analysis will include connections not only to family, but also to school and community. Judges will have a better opportunity to mitigate harms by having this additional context at the time of deciding how best to proceed. The judge will also be able to ask that the social worker’s harm reduction, trauma informed report include suggested mitigation solutions to the impact of removal. Eight states and Washington D.C. require the courts to assess the harm of removal, or include the harm of removal and emphasis on family preservation in their reasonable efforts criteria or agency guidance. It is time that California follows their lead and requires our own trauma-informed harm reduction model, in so doing, we can better protect children and their families across our great state.
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes
According to the Senate Appropriations Committee:
- CDSS: Staff notes unknown ongoing costs to the Department of Social Services (CDSS), including hundreds of thousands for 2.0 additional Associate Governmental Program Analyst, one for the Family Centered Safety and Support Bureau to provide all-county support and technical assistance, as well as one for the Training Support Unit (General Fund). Additional costs may include CORE training for social workers and ongoing local assistance to counties.
- Local Costs: Unknown costs to counties in order for social workers to provide the detail required by this bill in their initial reports. To the extent this bill increases county costs already borne by a local agency for programs or levels of service mandated by the 2011 Realignment, the bill would apply to local agencies only to the extent that the state provides annual funding for the cost increases.
SUPPORT: (Verified 5/19/23)
California Judges Association (source)
All of Us or None Orange County
California Catholic Conference
California Families Rise
Dependency Legal Services
East Bay Family Defenders
JMACforFamilies
Legal Services for Prisoners with Children
Los Angeles Dependency Lawyers, Inc.
National Center for Youth Law
National Coalition for Child Protection Reform
Opioid Policy Institute
Parents Against CPS/Court Corruption
Pregnancy Justice
Public Counsel
Starting Over, Inc.
One individual
OPPOSITION: (Verified 5/19/23)
None received
ARGUMENTS IN SUPPORT: According to the sponsor of this bill, the California Judges Association, “Juvenile court judges make critical decisions concerning the well-being of our state’s most vulnerable children. While our judges take the harm that children may experience when removed from parental custody into consideration, no statute specifically addresses how the court should consider this harm. SB 578 seeks to provide some guidelines for the court to consider as well as asking the court to consider methods that might reduce that trauma.”
Prepared by: Allison Whitt Meredith / JUD. / (916) 651-4113
5/20/23 13:00:27
**** END ****
Going forward, this analysis uses “parent” to include “guardian” and the single includes the plural. ↑
SENATE COMMITTEE ON
Senator Anthony Portantino, Chair
2023 - 2024 Regular Session
SB 578 (Ashby) - Juvenile court: dependents: removal
Version: | Policy Vote: |
Urgency: | Mandate: |
Hearing Date: | Consultant: |
Bill Summary:
SB 578 would require a social worker to report on, and a juvenile court to consider, the potential harms that may result from removing a child from their parent, guardian, or Indian custodian’s custody; and, if the child is or there is reason to know the child is an Indian child, requires the social worker to report on what efforts have been made to contact the child’s tribe.
Fiscal Impact:
- CDSS: Staff notes unknown ongoing costs to the Department of Social Services (CDSS), including hundreds of thousands for 2.0 additional Associate Governmental Program Analyst, one for the Family Centered Safety and Support Bureau to provide all-county support and technical assistance, as well as one for the Training Support Unit (General Fund). Additional costs may include CORE training for social workers and ongoing local assistance to counties.
- Local Costs: Unknown costs to counties in order for social workers to provide the detail required by the bill in their initial reports. To the extent the bill increases county costs already borne by a local agency for programs or levels of service mandated by the 2011 Realignment, the bill would apply to local agencies only to the extent that the state provides annual funding for the cost increases.
Background:
The juvenile court provides for the protection and safety of minors who are experiencing neglect or abuse, or are at risk of neglect or abuse, from their parents. To this end, the juvenile court is empowered to remove children from their parent’s custody and, if the parent fails to improve, terminate parental rights. These measures are intended to protect the child from the parent; however, these measures can also cause short-term and long-term harms on the child. Not only is the removal process itself traumatic, but children placed with a resource family may be forced to change schools or sports teams, not be able to spend time with friends, and lose the comfort of a beloved pet. Without proper safeguards, therefore, removal can cause more trauma than relief. To avoid this result, several states have implemented measures requiring juvenile courts to consider the likely harm of removal and, if removal is necessary, measures that can be taken to alleviate the disruption to the child.
This bill requires a social worker, as part of their report to the juvenile court at an initial hearing on a petition to declare a child a dependent of the juvenile court, to report on the harms that may result from removal and list any measures that could be taken to minimize those harms and alleviate disruption. The bill then requires the court, as part of its determination of whether the child should be removed from the parent’s custody, to consider the likely harms from removal and, if it determines that removal is necessary, set forth its reasoning on the record and include in its order any measures to be taken to minimize the disruption to the child. The court must make those findings on the record or in a written order. This bill also requires a social worker, at the initial hearing, to report on efforts made to contact a child’s tribe if the child is, or there is reason to know the child is, an Indian child.
Proposed Law:
- Requires a social worker, in their report to the court prior to the initial hearing on whether to remove a child from, or keep a child out of, their parent or Indian custodian’s custody, to include:
- Information regarding the short-term and long-term harms that may result from the child’s removal from custody, including specified factors, as well as measures to alleviate the disruption and minimize the harms of removal with the least disruptive alternatives.
- If it is known or there is reason to know the child is an Indian child, the steps taken to consult with the tribe and the outcome of the consultation.
- Requires a court, as part of its determination as to whether continuance in the parent’s home is contrary to the child’s welfare at the initial hearing, to consider the short-term and long-terms harms that may result from the continued removal. In making this determination, the court shall review the social worker’s report and any other evidence in considering factors that include, but are not limited to:
- The child’s attitude towards removal and the existing relationship between the child and their parent or Indian custodian.
- The existing relationship between the child and other members of the household, including, but not limited to, siblings.
- The disruption to the child’s schooling, social relationships, and physical or emotional health that may result from placement out of the home.
- Requires a court, if it finds at the initial hearing that removal is necessary, to make a determination of its findings, referencing the social worker’s report and other evidence relied upon, and specify the measures to be taken to alleviate the disruption and minimize the harms of removal with the least disruptive alternatives in a written order or on the record.
Related Legislation:
- SB 824 (Ashby, 2023) expands the Department of Social Services’ (DSS) authority to grant an exemption to restrictions on a person serving as a resource family for a specific child when that person has a criminal conviction, to permit DSS to grant an exception to a person who is an extended family member or a nonrelative extended family member, provided that DSS finds the exemption is justified and other specified conditions are met. SB 824 is pending before the Senate Human Services Committee.
- SB 463 (Wahab, 2023) eliminates the evidentiary presumption in juvenile court that a parent or guardian’s lack of participation or progress in a treatment program endangers the child, for purposes of determining whether the child should be returned to the parent or guardian’s custody. SB 463 is pending before this Committee.
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SENATE COMMITTEE ON HUMAN SERVICES
Senator Alvarado-Gil, Chair
2023 - 2024 Regular
Bill No: | SB 578 | ||
Author: | Ashby | ||
Version: | February 15, 2023 | Hearing Date: |
|
Urgency: | No | Fiscal: | Yes |
Consultant: | Heather Hopkins | ||
Subject: Juvenile court: dependents: removal
SUMMARY
This bill requires the social workers’ predisposition reports to include information regarding short-term and long-term harms to the child that may result from their removal from the custody of their parent, guardian, or Indian custodian and requires the court to consider in its determination on whether continuance in the parent’s or guardian’s home is contrary to the child’s welfare, the short-term and long-term harms to the child that may result from the continued removal.
ABSTRACT
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 abuse and neglect or to have been abused or neglected, as specified. (WIC 202)
- Establishes a system of juvenile dependency for children for specified reasons, and designates that a child who meets certain criteria is within the jurisdiction of the juvenile court and may be adjudged as a dependent child of the court, as specified. (WIC 300 et seq.)
- Requires a social worker to immediately investigate the circumstance of the child and the facts surrounding the child being taken into custody and attempt to maintain the child with the child’s family through the provision of services, when a child is taken into temporary custody, as provided, and brought to the social worker. (WIC 309(a))
This Bill:
- Requires the social workers’ predisposition reports to contain information regarding short-term and long-term harms to the child that may result from their removal from the custody of their parent, guardian, or Indian custodian. This includes, but is not limited to:
- The child’s attitude toward removal and the existing relationship between the child and their parents, guardians, or Indian custodians
- The child’s attitude towards removal and the existing relationship between the child and their parents, guardians, or Indian custodians.
- The existing relationship between the child and other members of the household, including, but not limited to, siblings.
- The disruption to the child’s schooling, social relationships, and physical or emotional health that may result from placement out of the home.
- Measures to alleviate the disruption and minimize the harms of removal with the least disruptive alternatives
- The steps taken to consult with the tribe and the outcome of that consultation, if it is known or there is reason to know the child is an Indian child.
- The child’s attitude toward removal and the existing relationship between the child and their parents, guardians, or Indian custodians
- Requires the court, in make the determination on whether continuance in the parent’s or guardian’s home is contrary to the child’s welfare, to consider the short-term and long-term harms to the child that may result from the continued removal. Requires the court, in making this determination, to review the social worker’s report and any other evidence in considering factors that include, but are not limited to, all of the following:
- The child’s attitude towards removal and the existing relationship between the child and their parents, guardians, or Indian custodians.
- The existing relationship between the child and other members of the household, including, but not limited to, siblings.
- The disruption to the child’s schooling, social relationships, and physical or emotional health that may result from placement out of the home.
- The child’s attitude towards removal and the existing relationship between the child and their parents, guardians, or Indian custodians.
- Requires the court, if it finds that removal of a child, Indian child or is necessary, to make a determination of its findings, referencing the social worker’s report and other evidence relied upon, and specify the measures to be taken to alleviate the disruption and minimize the harms of removal with the least disruptive alternatives in a written order or on the record.
FISCAL IMPACT
This bill has not yet been analyzed by a fiscal committee.
BACKGROUND AND DISCUSSION
Purpose of the Bill:
According to the author, “There is no disputing that children suffer harm when they are separated from their parents. The highly traumatic experience of family separation can cause irreparable harm, disrupting a child's brain architecture and affecting their short- and long-term health. SB 578 is a bill sponsored by the very judges who are charged with this most difficult task. SB578 seeks to reduce the harm a child must endure by requiring a trauma informed analysis be provided to judges in advance of any removal decision. This bill will require the court to consider the trauma a child will experience as a result of removal from parental care and weigh that harm against the potential risk of non-removal. Judges will have a better opportunity to mitigate harms by having this additional context at the time of deciding how best to proceed. The judge will also be able to ask that the social worker’s harm reduction, trauma informed report include suggested mitigation solutions to the impact of removal. Eight states and Washington D.C. require the courts to assess the harm of removal, or include the harm of removal and emphasis on family preservation in their reasonable efforts criteria or agency guidance. It is time that California follows their lead and requires our own trauma-informed harm reduction model, in so doing, we can better protect children and their families across our great state.”
Child Welfare Services (CWS)
The CWS system is an essential component of the state’s safety net. Social workers in each county who receive reports of abuse or neglect, investigate and resolve those reports. When a case is substantiated, a family is either provided with services to ensure a child’s well-being and avoid court involvement, or a child is removed and placed into foster care. In 2022, the state’s child welfare agencies received 440,212 reports of abuse or neglect. Of these, 51,806 reports contained allegations that were substantiated and 19,953 children were removed from their homes and placed into foster care via the CWS system.
After the county child welfare department becomes involved with families, approximately 12 months of services are provided to children who are able to remain safely in their home while the family receives services. This is considered family preservation services and the child does not come under the jurisdiction of the juvenile dependency court during this time.
If it is determined that a child cannot remain in the home, even with family preservation and support services, the child comes under the jurisdiction of the county’s juvenile dependency court while the family is served by a CWS system social worker. This system seeks to ensure the safety and protection of these children, and where possible, preserve and strengthen families through visitation and family reunification. It is the state’s goal to reunify a foster child or youth with their biological family whenever possible.
Generally, if a child cannot be safely returned home after the time allotted for reunification services ends, the court terminates the parental rights of the child’s parents. The child’s case plan then focuses on permanency services, in an effort to connect the child to a permanent placement through adoption or guardianship. If an adoption or guardianship is not established, a child may remain in long-term foster care. The child is always supposed to be placed in the most family like setting, with short-term residential treatment programs used only as necessary to provide intensive services. A child remains eligible for services for the length of their time in the child welfare system, time limits relate to the provision of services to the child’s parents.
In some circumstances, existing law allows the court to not provide reunification services at all, and parental rights are terminated without the opportunity for reunification. These circumstances include, but are not limited to the following examples: when the whereabouts of the parent are unknown; when the parent is suffering from a mental disability, as provided, that renders the parent incapable of utilizing those services; when the parent caused the death of another child through abuse or neglect; after a finding of sever sexual abuse; when the parent has been convicted of a violent felony, as provided; and in some instances where a prior child of the parent became a dependent of the court and was unable to reunify.
Dependency Court Process
The juvenile dependency court holds legal jurisdiction over a foster child or non-minor dependent (NMD). The juvenile dependency court is responsible for determining whether a child is safe and for making decisions about the care and control of the child. The court also orders the provision of services to the child and biological parents through a variety of court hearings. This dependency court process sets the path through which a child welfare case is prescribed. When a child is first detained, the judge reviews the facts and decides whether to remove the child from their parents or to return the child home, typically with instructions that parents participate in services. At this hearing, which is referred to as the detention hearing, the court will also try to identify any suitable relatives who may be able to care for the child while the case is pending. If the child has been removed from the home before or at this point in the process, they are considered to be placed in a temporary placement.
The second hearing is a jurisdictional hearing, in which the merits of the case are decided, this may include a trial on the facts. At this hearing, which must be held within 15 court days from the date of the detention order if the child has been removed from their family, a judge determines whether the allegations of abuse or neglect in the petition filed with the court are true. If the judge determines the allegations to be true, the court takes authority over the child, making the child a dependent of the court and entering the child into the CWS system. This gives the judge the authority to make orders regarding the child’s care. If the judge finds the allegations are true at the jurisdictional hearing, then a dispositional hearing is held, sometimes on the same day.
At a dispositional hearing the judge decides: where and with whom the child should live (including whether the child can return home or be removed from their parent’s custody); when, where, and how visitation between the child and their parent occurs; what services the child needs to be safe and healthy; and what services the parent needs in order to be reunified with their child. Subsequent hearings evaluate the status of the parents’ attempts to reunify with the child and the child’s well-being. As a result of SB 1336 (Jackson, Chapter 890, Statutes of 2016), a judge is required to determine whether a child’s social worker has exercised due diligence in conducting their investigation to identify, locate, and notify a dependent child’s relatives of the child’s involvement with the CWS system and to continue the dispositional hearing if the court determines the social worker did not exercise due diligence.
Child Abuse and Neglect Investigations
Suspicion of child abuse or neglect can be reported to either law enforcement or a county child welfare agency, usually through the Child Protective Services (CPS) hotline. Through the hotline, which is staffed 24 hours, trained social workers are available to receive calls on suspected abuse cases. These reports are often made by mandated reporters who, because of their profession, are legally required to report any suspicion of child abuse or neglect. In California, mandated reporters include: teachers, doctors, social workers, mental health professionals, and child care providers, among others. In addition to mandated reporters, any individual who believes a child may be suffering abuse or neglect can make a report to law enforcement or the county child welfare agency.
Calls received by the CPS hotline are screened by social workers who attempt to determine if the caller is reporting alleged abuse, neglect, or exploitation. Based on the information gathered in the report, CPS determines if the report warrants an in-person visit from a county social worker to investigate the allegations. If an in-person visit substantiates the allegations, the social worker may determine the family is in need of services to ensure the child’s well-being and avoid court involvement, or determine it is in the child’s best interests to be removed from the home. If removal is determined to be in the best interest of the child, the county petitions the court to adjudicate the child as a dependent of the court, which enters the child into the state’s foster care system.
Current statute describes various circumstances under which a child is determined to have suffered abuse or neglect and the juvenile court may decide that the child is a dependent of the court. Instances of abuse include, but are not limited to, when the child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted non-accidentally by the child’s parent or guardian; when the child is suffering, or is at risk of suffering, substantial emotional damage as a result of the conduct of the parent or guardian; when the child has been sexually abused, or there is a substantial risk that the child will be sexually abused by the parent or guardian or a member of their household; or the parent or guardian has failed to adequately protect the child from sexual abuse when the parent or guardian knew or reasonably should have known that the child was in danger of sexual abuse. Instances of neglect include, but are not limited to: when the child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness as a result of the failure or inability of the parent or guardian to adequately supervise or protect the child or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment; or by the inability of the parent or guardian to provide regular care for the child due to the parent’s or guardian’s mental illness, developmental disability, or substance abuse.
Child Welfare Services (CWS) and Reunification
The purpose of California’s 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; these 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 their 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. Social workers in each county receive reports of abuse or neglect, and work to investigate and resolve those reports. When a case is substantiated, a family is either provided with services to ensure a child’s well-being and avoid court involvement, or a child is removed from the family and placed into foster care. This system seeks to ensure the safety and protection of these children, and where possible, preserve and strengthen families through visitation and family reunification. It is the state’s goal to reunify a foster child or youth with their biological family whenever possible. In 2022, the state’s child welfare agencies received 440,212 reports of abuse or neglect. Of these, 61,438 reports contained allegations that were substantiated and 19,953 children were removed from their homes and placed into foster care via the CWS system.
In instances where the county child welfare department becomes involved with a family, and determines a child does not need to be removed, but rather may remain safely in their home through the provision of services, approximately 12 months of services are provided. This is considered family preservation services and the child does not come under the jurisdiction of the juvenile dependency court during this time.
If it is determined that a child cannot safely remain in the home, even with family preservation and support services, the child comes under the jurisdiction of the county’s juvenile dependency court while the family is served by a CWS system social worker. This system seeks to ensure the safety and protection of these children, and where possible, to preserve and strengthen families through visitation and family reunification. It is the state’s goal to reunify a foster child or youth with their biological family whenever possible.
Generally, if a child cannot be safely returned home after the time allotted for reunification services ends, the court terminates the parental rights of the child’s parents. The child’s case plan then focuses on permanency services, in an effort to connect the child to a permanent placement through adoption or guardianship. If an adoption or guardianship is not established, a child may remain in long-term foster care. The child is always supposed to be placed in the most family like setting, with short-term residential treatment programs used only as necessary to provide intensive services. A child remains eligible for services for the length of their time in the child welfare system; time limits relate to the provision of services to the child’s parents.
Initial Hearings in Dependency Cases
Once a child has been detained by CPS, a petition must be filed within two court days and a hearing must be held no later than the end of the next court day after the petition has been filed. Prior to the hearing, the social worker submits a report identifying, among other things, the reasons for removal, need for continued detention, services already provided to the family, and any services available to prevent the need for further detention. Currently the report does not include information about the potential short-term or long-term harm to the child of the removal. This bill would require that information to be included in the report and considered by the court in making their disposition.
At the hearing, once the court has reviewed the social worker’s report and any evidence proffered by any of the parties, the court must order a child released back to the parent’s custody unless the court finds, pursuant to WIC 319:
- Continuance in the parent’s physical custody is contrary to the child’s welfare, and any of the following exist:
- There is substantial danger to the child’s physical health or the child is suffering from severe emotional damage and there are no reasonable means to protect the child without removal;
- There is substantial evidence the parent is likely to flee with the child;
- The child left a previous court-ordered placement; or
- The child is unwilling to return home and has been physically or sexually abused by someone living there.
This bill seeks to add a harm reduction element by requiring the court to also explicitly weigh the harm to the child from the removal. This would make California’s approach in line with what eight states and the District of Columbia are currently doing, either by statute or policy guidelines.
Potential Harm from Removal
Studies have shown that while the child welfare system tends to err on the side of removal, removal itself can cause irreparable harm. According to the American Academy of Pediatrics’ research, removal from parents can disrupt a child’s brain architecture and negatively impacting their health. The research goes on to note that not only are there psychological traumas at the time of removal, those can occur long after reunification. These children can experience post-traumatic stress disorder, anxiety, depression, suicidal ideation, and developmental delays. Other studies have focused on the day of placement and the extreme feelings of loss that brings, calling it a crisis point where children feel overwhelmed with everything in their life changing with feelings of abandonment, rejection, worthlessness, and guilt.
A PBS NOVA[1] article on the topic reads in part, “When a child is separated from his or her parents under chaotic circumstances, a monsoon of stress hormones (like cortisol) floods the brain and the body. These hormones are important for navigating stress in the short-term. However, in high doses, these chemicals—if hyperactive for a prolonged period of time—can increase the risk of lasting, destructive complications like heart disease, diabetes, and even some forms of cancer. In addition, multiples instances of trauma early in life can lead to mental health problems like depression, anxiety, and post-traumatic stress disorder (PTSD)…’Even when children are in the care of parents who may not be able to meet their needs or to keep them safe, they still organize their behaviors and thinking around these relationships and go at great lengths to maintain them,’ said Carmen Rosa Noroña, Child Trauma Clinical Services and Training Lead of Boston Medical Center’s Child Witness to Violence Project. Moreover, when these attachment relationships are suddenly subverted and there is no other adult who can help the child make meaning—or a story—of what has happened, the child might experience not only a sense of confusion and terror but might also blame himself or herself for losing the parent.”
The California Judges Association and the Juvenile Court Judges of California, write in support of the bill that, “Juvenile court judges make critical decisions concerning the well-being of our state’s most vulnerable children. While our judges take the harm that children may experience when removed from parental custody into consideration, no statute specifically addresses how the court should consider this harm. SB 578 seeks to provide some guidelines for the court to consider as well as asking the court to consider methods that might reduce that trauma.”
Related/Prior Legislation:
AB-2159 (Bryan, Chapter 691, Statutes of 2022) prohibits a dependency court from denying family reunification services to a parent or guardian who is in custody before conviction and requires the court, in determining the appropriate reunification services for the parent or guardian in custody, to consider the particular barriers to an incarcerated, institutionalized, detained, or deported parent’s or guardian’s access to those court-mandated services and ability to maintain contact with the child and document that information in the child’s care plan.
AB 788 (Calderon, Chapter 201, Statutes of 2021) clarified the meaning of “resisted” for the purposes of existing law which enables a juvenile dependency court to deny reunification services for a parent who has a history of drug or alcohol abuse and has resisted court-ordered treatment.
AB 1702 (Stone, Chapter 124, Statutes of 2016) expanded the court's ability to deny reunification services to the parent or guardian of a dependent child to include instances in which the court finds the individual has knowingly participated in the child's sexual exploitation, as specified.
SB 1336 (Jackson, Chapter 890, Statutes of 2016) required the juvenile court to consider whether the social worker exercised due diligence in conducting their investigation to identify, locate, and notify a dependent child’s relatives, as provided.
SB 1056 (Liu, 2015) would have made several changes to the provisions regarding reunification services for parents without housing. SB 1056 was held on the Senate Appropriations Committee suspense file.
SB 68 (Liu, Chapter 284, Statutes of 2015) required the court to include obstacles to minor parents or nonminor dependent parents in the determination of eligibility for reunification services.
COMMENTS
The dependency system has long had a singular focus in their determination of whether to continue the removal of a child from their home – whether continuance in the home is contrary to the child’s welfare. That calculus has ignored the possible harm that the removal itself could cause the child. Studies have shown that, in some cases, the removal may be more detrimental to the child than to continue in the care of the parent or guardian. This bill seeks to bridge that divide by requiring the social worker to include in their report information about short-term and long-term harm to the child from removal, and for the court to consider this information in its determination on whether continuance in the parent’s or guardian’s home is contrary to the child’s welfare, the short-term and long-term harms to the child that may result from the continued removal.
POSITIONS
Support:
Aouon Orange County
California Judges Association
Dependency Legal Services
East Bay Family Defenders
Legal Services for Prisoners with Children
Los Angeles Dependency Lawyers, INC.
National Center for Youth Law
National Coalition for Child Protection Reform
Public Counsel
Oppose:
None received
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https://www.pbs.org/wgbh/nova/article/psychological-damage-inflicted-by-parent-child-separation-is-deep-long-lasting/ ↑
Senator Thomas Umberg, Chair
2023-2024 Regular Session
Bill No: SB 578 (Author:Ashby)
Version: March 29, 2023
Hearing Date: April 11, 2023
Fiscal: Yes
Urgency: No
Consultant: AWM
SUBJECT
Juvenile court: dependents: removal
DIGEST
This bill requires a social worker to report on, and a juvenile court to consider, the potential harms that may result from removing a child from their parent, guardian, or Indian custodian’s custody; and, if the child is or there is reason to know the child is an Indian child, requires the social worker to report on what efforts have been made to contact the child’s tribe.
EXECUTIVE SUMMARY
The juvenile court provides for the protection and safety of minors who are experiencing neglect or abuse, or are at risk of neglect or abuse, from their parents. To this end, the juvenile court is empowered to remove children from their parent’s custody and, if the parent fails to improve, terminate parental rights. These measures are intended to protect the child from the parent; however, these measures can also wreak severe short-term and long-term harms on the child. Not only is the removal process itself traumatic, but children placed with a resource family may be forced to change schools or sports teams, not be able to spend time with friends, and lose the comfort of a beloved pet. Without proper safeguards, therefore, removal can cause more trauma than relief. To avoid this perverse result, several states have implemented measures requiring juvenile courts to consider the likely harm of removal and, if removal is necessary, measures that can be taken to alleviate the disruption to the child.
This bill requires a social worker, as part of their report to the juvenile court at an initial hearing on a petition to declare a child a dependent of the juvenile court, to report on the harms that may result from removal and list any measures that could be taken to minimize those harms and alleviate disruption. The bill then requires the court, as part of its determination of whether the child should be removed from the parent’s custody, to consider the likely harms from removal and, if it determines that removal is necessary, set forth its reasoning on the record and include in its order any measures to be taken to minimize the disruption to the child. The court must make those findings on the record or in a written order. This bill also requires a social worker, at the initial hearing, to report on efforts made to contact a child’s tribe if the child is, or there is reason to know the child is, an Indian child. The author has agreed to minor amendments to clarify the bill’s requirements.
This bill is sponsored by the California Judges Association and is supported by All Of Us Or None Orange County, the California Catholic Conference, Dependency Legal Services, East Bay Family Defenders, Legal Services for Prisoners with Children, the National Center for Youth Law, the National Coalition for Child Protection Reform, Pregnancy Justice, Public Counsel, and one individual. There is no known opposition. If this Committee passes this bill, it will be heard next by the Senate Human Services Committee.
PROPOSED CHANGES TO THE LAW
Existing federal law:
- Establishes the Indian Child Welfare Act (ICWA), which provides guidance to states regarding the jurisdictional requirements, proceedings of tribal courts, and custody proceedings involving the removal of Indian children from their parents. (25 U.S.C., ch. 21, §§ 1901 et seq.)
Existing state law:
- Establishes the juvenile court, which is intended to provide for the protection and safety of the public and minors falling under its jurisdiction. (Welf. & Inst. Code, §§ 202, 245.)
- Provides that a minor may become a dependent of the juvenile court and be removed from the custody of their parent or guardian[1] on the basis of enumerated forms of abuse or neglect. (Welf. Inst. Code, § 300(a)-(j).)
- Provides that the purpose of the juvenile court and the dependency system is to provide the maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm. This safety, protection, and physical and emotional well-being may include provision of a full array of social and health services to help the child and family and to prevent the reabuse of children. (Welf. & Inst. Code, § 300.2.)
- Provides that a proceeding to declare a child to be a dependent of the juvenile court is commenced when a social worker files a petition with the juvenile court. (Welf. & Inst. Code, § 325.)
- A social worker may file a petition while the child remains in the custody of their parent. (Welf. & Inst. Code, § 325.)
- If a child has been removed from the custody of their parent without a warrant and remains detained, pursuant to specified requirements, the child must be released within 48 hours, excluding nonjudicial days, unless a petition to declare the child a dependent of the juvenile court is filed. (Welf. & Inst. Code, §§ 305, 309, 313.)
- If it is known or there is reason to know that the child taken into custody under 4(b) is an Indian child, the social worker must comply with additional requirements consistent with the ICWA. (Welf. & Inst. Code, §§ 224, 224.1, 305.5.)
- Requires an initial hearing must be held on a petition to declare a child to be a dependent of the juvenile court. (Welf. & Inst. Code, § 319.)
- Requires a social worker to report information at the initial hearing as follows:
- For all children, the social worker must report to the court on the reasons the child was removed from the parent or Indian custodian’s physical custody, the need, if any, for further detention, the available services and referral methods that could facilitate the return of the child to their parent or Indian custodian’s custody, and whether there are any relatives willing and able to take temporary physical custody of the child. (Welf. & Inst. Code, § 319(b).)
- If it is known or there is reason to know that the child is an Indian child, the report must include additional information, including efforts taken to assist the parents or Indian custodians so the Indian child may safely be returned to their custody. (Welf. & Inst. Code, § 316(b)(1)-(9).)
- At an initial hearing where the child has already been detained, requires the court to order the release of the child from custody unless a prima facie showing has been made that the child is within the jurisdiction of the juvenile court, the court finds that the continuance in the parent’s home is contrary to the child’s welfare, and any of the following circumstances exist:
- There is a substantial danger to the physical health of the child or the child is suffering severe emotional damage, and there are no reasonable means by which the child’s physical or emotional health may be protected without removing the child from the parent’s custody.
- There is substantial evidence that a parent is likely to flee the jurisdiction of the court.
- The child has left a placement in which the child was placed by the juvenile court.
- The child indicates an unwillingness to return home, if the child has been physically or sexually abused by a person residing in the home. (Welf. & Inst. Code, § 319(c).)
- If the child is an Indian child, imposes limitations in addition to those in 7) for a court to order that the Indian child remain in detention:
- When the court finds that there is substantial evidence that a parent or Indian custodian is likely to flee the jurisdiction, the court must also find that fleeing the jurisdiction will place the child at risk of imminent physical damage or harm.
- Under all circumstances, the court may detain the Indian child only if it also finds that detention is necessary to prevent imminent physical damage or harm and must state the facts supporting the finding on the record. (Welf. & Inst. Code, § 319(c), (d).)
- At an initial hearing where a child has not yet been detained, authorizes a court to order the child to be detained, provided that the court does all of the following:
- States the facts on which the decision was based.
- Specifies why the initial removal was necessary.
- References the social worker’s report or other evidence relied upon to make its determination whether continuance in the home of the parent or legal guardian is contrary to the child’s welfare.
- Makes orders addressing the child’s placement and care and the provision of reunification services, as appropriate. (Welf. & Inst. Code, § 319(g).)
- Establishes, for children who remain out of or are removed from their parent’s custody after the initial hearing, a series of review hearings at six-month intervals at which the court may return the child to their parent’s custody or continue the child’s placement outside their parent’s home; these review hearings may culminate in a permanency hearing that terminates parental rights and a permanent placement for the child. (Welf. & Inst. Code, §§ 361.5, 366.21, 366.22, 366.25.)
This bill:
- Requires a social worker, in their report to the court prior to the initial hearing on whether to remove a child from, or keep a child out of, their parent or Indian custodian’s custody, to include:
- Information regarding the short-term and long-term harms that may result from the child’s removal from custody, including, but not limited to, the factors set forth in 2)(a)-(c), as well as measures to alleviate the disruption and minimize the harms of removal with the least disruptive alternatives.
- If it is known or there is reason to know the child is an Indian child, the steps taken to consult with the tribe and the outcome of the consultation.
- Requires a court, as part of its determination as to whether continuance in the parent’s home is contrary to the child’s welfare at the initial hearing, to consider the short-term and long-terms harms that may result from the continued removal. In making this determination, the court shall review the social worker’s report and any other evidence in considering factors that include, but are not limited to:
- The child’s attitude towards removal and the existing relationship between the child and their parent or Indian custodian.
- The existing relationship between the child and other members of the household, including, but not limited to, siblings.
- The disruption to the child’s schooling, social relationships, and physical or emotional health that may result from placement out of the home.
- Requires a court, if it finds at the initial hearing that removal is necessary, to make a determination of its findings, referencing the social worker’s report and other evidence relied upon, and specify the measures to be taken to alleviate the disruption and minimize the harms of removal with the least disruptive alternatives in a written order or on the record.
COMMENTS
- Author’s comment
According to the author:
There is no disputing that children suffer harm when they are separated from their parents. The highly traumatic experience of family separation can cause irreparable harm, disrupting a child's brain architecture and affecting their short- and long-term health. SB 578 is a bill sponsored by the very judges who are charged with this most difficult task. SB 578 seeks to reduce the harm a child must endure by requiring a trauma informed analysis be provided to judges in advance of any removal decision. Judges will make a more informed decision in the best interest of the child when given the requested analysis they need to weigh what is the safest and healthiest outcome given all that is happening in the life of the child before them.
SB 578 will require the court to consider the trauma a child will experience as a result of removal from parental care and weigh that harm against the potential risk of non-removal. The trauma analysis will include connections not only to family, but also to school and community. Judges will have a better opportunity to mitigate harms by having this additional context at the time of deciding how best to proceed. The judge will also be able to ask that the social worker’s harm reduction, trauma informed report include suggested mitigation solutions to the impact of removal. Eight states and Washington D.C. require the courts to assess the harm of removal, or include the harm of removal and emphasis on family preservation in their reasonable efforts criteria or agency guidance. It is time that California follows their lead and requires our own trauma-informed harm reduction model, in so doing, we can better protect children and their families across our great state.
2. The child dependency system and the trauma of removing a child from their parent’s custody
The overarching goal of dependency proceedings is to safeguard the welfare of California’s children.[2] Welfare and Institutions Code section 300 sets forth the circumstances that can bring a child within the jurisdiction of the juvenile dependency court. “ ‘Although the harm or risk of harm to the child [for jurisdictional purposes] must generally be the result of an act, omission or inability of one of the parents or guardians, the central focus of dependency jurisdiction is clearly on the child rather than the parent.’ ”[3]
When a child is found to be under the jurisdiction of the juvenile court, the court is determined to be a dependent of that court and the court may begin proceedings to remove the child from the custody of their parent(s); if, after a series of hearings, a parent is found to be unfit, the court can terminate the parent’s parental rights.[4] The overarching inquiry is whether the child would suffer, or is likely to suffer, harm if they remain with their parent.
In recent years, some have questioned whether juvenile courts’ inquiries are too narrow because they look only at the harms that could be inflicted on the child if they remain with the parent, and ignore the harms that could be inflicted on the child if they are removed from their parent’s custody.[5] Removing a child from their family and placing them into foster care can harm a child in a variety of ways beyond the obvious pain of separation from their parent, such as forcing them to leave a school where they are happy and separating them from their siblings, pets, and friends.[6] Removal can also cause a number of psychological harms that can lead to post-traumatic stress disorder and substance abuse issues.[7] And, as with many aspects of the dependency system, the harms can be worse and more for people of color, particularly Black and Indian children, who are often the victims of conscious and unconscious bias at every stage of the dependency process.[8]
3. This bill requires a juvenile court, when deciding whether to remove a child from their parent’s custody at an initial hearing, to consider the short-term and long-term harms that the child would likely suffer from removal
At an initial hearing on a petition to declare a child who is not an Indian child[9] a dependent of the juvenile court and to remove the child from the custody of the parent, a court should order the child released to their parent’s custody unless the court finds that “continuance in the parent’s or guardian’s home is contrary to the child’s welfare” and certain other circumstances exist.[10] This determination arguably already requires a court to consider the trauma of removing the child—removing a child from a parent’s home would be contrary to the child’s welfare if removal would cause more harm than good. The sponsor of the bill reports that some juvenile judges already engage in this implicit calculation.
This bill makes the implicit calculation explicit. Specifically, this bill requires a social worker to include, in their initial hearing report, information about the short-term and long-term harm to the child that may result from their removal from their parent’s custody, including the least-disruptive alternative if removal is necessary and other measures that may be taken to alleviate disruption and minimize the harm of removal. The court then must consider, as part of its determination of whether removal is necessary for the child’s welfare, the harms that may result from removal. If the court determines that removal is necessary, it must set forth the basis for its determination in a written order or on the record, and specify any measures that must be taken to alleviate disruption and minimize harm. The author has agreed to minor amendments to clarify these provisions. Several other states have adopted laws or implemented guidance instructing judges to consider the trauma of removal as a factor in the decision to remove a child from their parent’s custody.[11]
Relatedly, this bill requires a social worker to include in their initial hearing report, when the child is or there is reason to know the child is an Indian child, information setting forth the steps taken to consult with the Child’s tribe and the outcome of that consultation. This provision should assist in compliance with the ICWA.
4. Amendments
As noted above, the author has agreed to amend the bill to clarify its requirements as follows, with deletions in strikethrough and additions in bold and underlined, subject to any nonsubstantive changes the Office of Legislative Counsel may make:
Amendment 1
At page 3, in lines 17-24:
…The report shall also include information regarding the short-term and long-term harms to the child that may result from their removal from the custody of their parent, guardian, or Indian custodian, including, but not limited to, the information specified in subparagraph (A) of paragraph (2) of subdivision (c), and measures to alleviate the disruption and minimize the harms of removal with the least disruptive alternatives the least-disruptive alternatives to returning the child to the custody of their parent, guardian, or Indian custodian, and other measures that may be taken to alleviate disruption and minimize the harms of removal.
Amendment 2
At page 5, in lines 16-21:
(B) If the court finds that removal is necessary under paragraph (1), the court shall, in a written order or on the record, set forth all of the following:
(i) make a determination of The basis for its findings and the evidence relied on, including, where applicable, referencing the social worker’s report. and other evidence relied upon, and
(ii) The child’s placement and the basis for determining that the placement is the least-disruptive alternative for the child.
(iii) Any other specify the measures to be taken in order to alleviate the disruption and minimize the harms of removal for the child with the least disruptive alternatives in a written order or on the record.
Amendment 3
On page 7, add the requirements of Amendment 2 to when a court orders a child detained under subdivision (g).
5. Arguments in support
According to the sponsor of the bill, the California Judges Association:
Juvenile court judges make critical decisions concerning the well-being of our state’s most vulnerable children. While our judges take the harm that children may experience when removed from parental custody into consideration, no statute specifically addresses how the court should consider this harm. SB 578 seeks to provide some guidelines for the court to consider as well as asking the court to consider methods that might reduce that trauma.
SUPPORT
California Judges Association (sponsor)
All Of Us Or None Orange County
California Catholic Conference
Dependency Legal Services
East Bay Family Defenders
Legal Services for Prisoners with Children
National Center for Youth Law
National Coalition for Child Protection Reform
Pregnancy Justice
Public Counsel
One individual
OPPOSITION
None known
RELATED LEGISLATION
Pending Legislation:
SB 824 (Ashby, 2023) expands the Department of Social Services’ (DSS) authority to grant an exemption to restrictions on a person serving as a resource family for a specific child when that person has a criminal conviction, to permit DSS to grant an exception to a person who is an extended family member or a nonrelative extended family member, provided that DSS finds the exemption is justified and other specified conditions are met. SB 824 is pending before the Senate Human Services Committee.
SB 463 (Wahab, 2023) eliminates the evidentiary presumption in juvenile court that a parent or guardian’s lack of participation or progress in a treatment program endangers the child, for purposes of determining whether the child should be returned to the parent or guardian’s custody. SB 463 is pending before this Committee and is scheduled to be heard on the same date as this bill.
Prior Legislation:
SB 1021 (Durazo, 2020) would have, in the event a juvenile court ordered a child detained, prohibited the court from restricting visitation between a parent and child any more than necessary to ensure the child’s safety and well-being and would have specified facts that do not constitute a basis for requiring supervised visits; and would have, where a court orders a child into foster care, required the court to consider specified factors in making a visitation plan. SB 1021 was held in the Senate Judiciary Committee as a result of COVID-19-related bill limits.
AB 3176 (Waldron, Ch. 833, Stats. 2018) revised a range of dependency-related statutes to reflect changes to the ICWA, including the statute setting forth the procedures and requirements for the initial hearing on a dependency petition.
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Going forward, this analysis uses “parent” to include “guardian” and the single includes the plural. ↑
In re Josiah Z. (2005) 36 Cal.4th 664, 673. ↑
In re R.T., 3 Cal.5th 622, 626. ↑
See Welf. & Inst. Code, §§ 360, 361.3, 366.26. ↑
E.g., Trivedi, The Harm of Child Removal, 43 N.Y.U. Rev. of Law & Social Change 523, 526 (2019). ↑
Id. at pp. 532-533. ↑
Id. at pp. 528-532. ↑
Id. at pp. 534-541. ↑
Proceedings for removing an Indian child are subject to the ICWA, which imposes different standards for removal, different steps that must be taken when an Indian child may be a dependent of the juvenile court, and a higher standard for keeping an Indian child in custody. ↑
Welf. & Inst. Code, § 319(c). ↑
Trivedi, supra, 43 N.Y.U. Rev. of Law & Social Change, pp. 566-571; Iowa Code Ann., § 232.67; N.M. Stat. Ann., § 32A-4-21; S.C. Code Ann., § 63-7-1660. ↑
Discussed in Hearing
2MIN
Senate Floor
1MIN
Assembly Floor
44SEC
Assembly Floor
10MIN
Assembly Standing Committee on Human Services
Bill Author
Bill Co-Author(s):
