BILL NUMBER: SB 68 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 2, 2015
AMENDED IN SENATE MARCH 26, 2015
INTRODUCED BY Senator Liu
JANUARY 8, 2015
An act to amend Sections 361.5, 366.21,
366.21 and 366.22 of the Welfare and Institutions Code,
relating to juveniles.
LEGISLATIVE COUNSEL'S DIGEST
SB 68, as amended, Liu. Minor parents: reunification services.
(1) Existing law establishes the jurisdiction of the juvenile
court, which may adjudge children to be dependents of the court under
certain circumstances, including when the child suffered or there is
a substantial risk that the child will suffer serious physical harm,
or a parent fails to provide the child with adequate food, clothing,
shelter, or medical treatment. Existing law establishes the grounds
for removal of a dependent child from the custody of his or her
parents or guardian, and establishes procedures to determine
temporary placement of a dependent child. Existing law
prescribes various hearings, including specified review hearings, and
other procedures for these purposes. Existing law generally requires
the court to order the social worker to provide designated child
welfare services, including family reunification services, to the
child and the child's mother and statutorily presumed father or
guardians. Existing law does not require the provision of family
reunification services in cases in which the court has made one or
more specified findings regarding the qualifications of the parent or
guardian. Existing law prohibits the court from ordering
reunification for a parent or guardian described under specified
provisions, unless the court finds, by clear and convincing evidence,
that reunification is in the best interest of the child.
This bill would instead require the court to order reunification
services for a parent described under specified provisions if the
parent was a minor at the time when the facts that gave rise to the
condition for the court to deny reunification services occurred.
Because providing reunification services imposes additional duties on
social workers and other county employees, the bill would impose a
state-mandated local program.
(2) child. When a
court orders the removal of a child from the physical custody of his
or her parent, existing law generally requires the court to order
the return of the child to the physical custody of his or her parent
at the review hearings held 6 months, 12 months, and 18 months,
respectively, after the initial disposition hearing, unless the court
finds that the return of the child would create a substantial risk
of detriment, or substantial danger, to the safety, protection, or
physical or emotional well-being of the child. In making this
determination, existing law requires the court to consider the
efforts or progress, or both, demonstrated by the parent and the
extent to which he or she availed himself or herself of reunification
services, taking into account the particular barriers to an
incarcerated, institutionalized, detained, or deported parent's or
guardian's access to those court-mandated reunification services and
ability to maintain contact with his or her child.
This bill would require the court, in making its determination at
those review hearings, to take into account the particular barriers
to a minor parent.
(3)
(2) If a child is not returned to a parent or legal
guardian at the 18-month permanency review hearing and the court
determines by clear and convincing evidence that the best interests
of the child would be met by the provision of additional
reunification services to the parent or legal guardian, as specified,
existing law authorizes the court to continue the case for up to 6
months for a subsequent permanency review hearing, as specified.
This bill would authorize the court to continue the case for up to
6 months for the provision of additional reunification services to a
minor parent at the initial hearing who is making
significant and consistent progress in establishing a safe home for
the child's return and for a subsequent
permanency review hearing.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes
no . State-mandated local program: yes
no .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 361.5 of the Welfare and
Institutions Code is amended to read:
361.5. (a) Except as provided in subdivision (b), or when the
parent has voluntarily relinquished the child and the relinquishment
has been filed with the State Department of Social Services, or upon
the establishment of an order of guardianship pursuant to Section
360, or when a court adjudicates a petition under Section 329 to
modify the court's jurisdiction from delinquency jurisdiction to
dependency jurisdiction pursuant to subparagraph (A) of paragraph (2)
of subdivision (b) of Section 607.2 and the parents or guardian of
the ward have had reunification services terminated under the
delinquency jurisdiction, whenever a child is removed from a parent's
or guardian's custody, the juvenile court shall order the social
worker to provide child welfare services to the child and the child's
mother and statutorily presumed father or guardians. Upon a finding
and declaration of paternity by the juvenile court or proof of a
prior declaration of paternity by any court of competent
jurisdiction, the juvenile court may order services for the child and
the biological father, if the court determines that the services
will benefit the child.
(1) Family reunification services, when provided, shall be
provided as follows:
(A) Except as otherwise provided in subparagraph (C), for a child
who, on the date of initial removal from the physical custody of his
or her parent or guardian, was three years of age or older,
court-ordered services shall be provided beginning with the
dispositional hearing and ending 12 months after the date the child
entered foster care as provided in Section 361.49, unless the child
is returned to the home of the parent or guardian.
(B) For a child who, on the date of initial removal from the
physical custody of his or her parent or guardian, was under three
years of age, court-ordered services shall be provided for a period
of six months from the dispositional hearing as provided in
subdivision (e) of Section 366.21, but no longer than 12 months from
the date the child entered foster care as provided in Section 361.49
unless the child is returned to the home of the parent or guardian.
(C) For the purpose of placing and maintaining a sibling group
together in a permanent home should reunification efforts fail, for a
child in a sibling group whose members were removed from parental
custody at the same time, and in which one member of the sibling
group was under three years of age on the date of initial removal
from the physical custody of his or her parent or guardian,
court-ordered services for some or all of the sibling group may be
limited as set forth in subparagraph (B). For the purposes of this
paragraph, "a sibling group" shall mean two or more children who are
related to each other as full or half siblings.
(2) Any motion to terminate court-ordered reunification services
prior to the hearing set pursuant to subdivision (f) of Section
366.21 for a child described by subparagraph (A) of paragraph (1), or
prior to the hearing set pursuant to subdivision (e) of Section
366.21 for a child described by subparagraph (B) or (C) of paragraph
(1), shall be made pursuant to the requirements set forth in
subdivision (c) of Section 388. A motion to terminate court-ordered
reunification services shall not be required at the hearing set
pursuant to subdivision (e) of Section 366.21 if the court finds by
clear and convincing evidence one of the following:
(A) That the child was removed initially under subdivision (g) of
Section 300 and the whereabouts of the parent are still unknown.
(B) That the parent has failed to contact and visit the child.
(C) That the parent has been convicted of a felony indicating
parental unfitness.
(3) Notwithstanding subparagraphs (A), (B), and (C) of paragraph
(1), court-ordered services may be extended up to a maximum time
period not to exceed 18 months after the date the child was
originally removed from physical custody of his or her parent or
guardian if it can be shown, at the hearing held pursuant to
subdivision (f) of Section 366.21, that the permanent plan for the
child is that he or she will be returned and safely maintained in the
home within the extended time period. The court shall extend the
time period only if it finds that there is a substantial probability
that the child will be returned to the physical custody of his or her
parent or guardian within the extended time period or that
reasonable services have not been provided to the parent or guardian.
In determining whether court-ordered services may be extended, the
court shall consider the special circumstances of an incarcerated or
institutionalized parent or parents, parent or parents court-ordered
to a residential substance abuse treatment program, or a parent who
has been arrested and issued an immigration hold, detained by the
United States Department of Homeland Security, or deported to his or
her country of origin, including, but not limited to, barriers to the
parent's or guardian's access to services and ability to maintain
contact with his or her child. The court shall also consider, among
other factors, good faith efforts that the parent or guardian has
made to maintain contact with the child. If the court extends the
time period, the court shall specify the factual basis for its
conclusion that there is a substantial probability that the child
will be returned to the physical custody of his or her parent or
guardian within the extended time period. The court also shall make
findings pursuant to subdivision (a) of Section 366 and subdivision
(e) of Section 358.1.
When counseling or other treatment services are ordered, the
parent or guardian shall be ordered to participate in those services,
unless the parent's or guardian's participation is deemed by the
court to be inappropriate or potentially detrimental to the child, or
unless a parent or guardian is incarcerated or detained by the
United States Department of Homeland Security and the corrections
facility in which he or she is incarcerated does not provide access
to the treatment services ordered by the court, or has been deported
to his or her country of origin and services ordered by the court are
not accessible in that country. Physical custody of the child by the
parents or guardians during the applicable time period under
subparagraph (A), (B), or (C) of paragraph (1) shall not serve to
interrupt the running of the time period. If at the end of the
applicable time period, a child cannot be safely returned to the care
and custody of a parent or guardian without court supervision, but
the child clearly desires contact with the parent or guardian, the
court shall take the child's desire into account in devising a
permanency plan.
In cases where the child was under three years of age on the date
of the initial removal from the physical custody of his or her parent
or guardian or is a member of a sibling group as described in
subparagraph (C) of paragraph (1), the court shall inform the parent
or guardian that the failure of the parent or guardian to participate
regularly in any court-ordered treatment programs or to cooperate or
avail himself or herself of services provided as part of the child
welfare services case plan may result in a termination of efforts to
reunify the family after six months. The court shall inform the
parent or guardian of the factors used in subdivision (e) of Section
366.21 to determine whether to limit services to six months for some
or all members of a sibling group as described in subparagraph (C) of
paragraph (1).
(4) Notwithstanding paragraph (3), court-ordered services may be
extended up to a maximum time period not to exceed 24 months after
the date the child was originally removed from physical custody of
his or her parent or guardian if it is shown, at the hearing held
pursuant to subdivision (b) of Section 366.22, that the permanent
plan for the child is that he or she will be returned and safely
maintained in the home within the extended time period. The court
shall extend the time period only if it finds that it is in the child'
s best interest to have the time period extended and that there is a
substantial probability that the child will be returned to the
physical custody of his or her parent or guardian who is described in
subdivision (b) of Section 366.22 within the extended time period,
or that reasonable services have not been provided to the parent or
guardian. If the court extends the time period, the court shall
specify the factual basis for its conclusion that there is a
substantial probability that the child will be returned to the
physical custody of his or her parent or guardian within the extended
time period. The court also shall make findings pursuant to
subdivision (a) of Section 366 and subdivision (e) of Section 358.1.
When counseling or other treatment services are ordered, the
parent or guardian shall be ordered to participate in those services,
in order for substantial probability to be found. Physical custody
of the child by the parents or guardians during the applicable time
period under subparagraph (A), (B), or (C) of paragraph (1) shall not
serve to interrupt the running of the time period. If at the end of
the applicable time period, the child cannot be safely returned to
the care and custody of a parent or guardian without court
supervision, but the child clearly desires contact with the parent or
guardian, the court shall take the child's desire into account in
devising a permanency plan.
Except in cases where, pursuant to subdivision (b), the court does
not order reunification services, the court shall inform the parent
or parents of Section 366.26 and shall specify that the parent's or
parents' parental rights may be terminated.
(b) Reunification services need not be provided to a parent or
guardian described in this subdivision when the court finds, by clear
and convincing evidence, any of the following:
(1) That the whereabouts of the parent or guardian is unknown. A
finding pursuant to this paragraph shall be supported by an affidavit
or by proof that a reasonably diligent search has failed to locate
the parent or guardian. The posting or publication of notices is not
required in that search.
(2) That the parent or guardian is suffering from a mental
disability that is described in Chapter 2 (commencing with Section
7820) of Part 4 of Division 12 of the Family Code and that renders
him or her incapable of utilizing those services.
(3) That the child or a sibling of the child has been previously
adjudicated a dependent pursuant to any subdivision of Section 300 as
a result of physical or sexual abuse, that following that
adjudication the child had been removed from the custody of his or
her parent or guardian pursuant to Section 361, that the child has
been returned to the custody of the parent or guardian from whom the
child had been taken originally, and that the child is being removed
pursuant to Section 361, due to additional physical or sexual abuse.
(4) That the parent or guardian of the child has caused the death
of another child through abuse or neglect.
(5) That the child was brought within the jurisdiction of the
court under subdivision (e) of Section 300 because of the conduct of
that parent or guardian.
(6) That the child has been adjudicated a dependent pursuant to
any subdivision of Section 300 as a result of severe sexual abuse or
the infliction of severe physical harm to the child, a sibling, or a
half sibling by a parent or guardian, as defined in this subdivision,
and the court makes a factual finding that it would not benefit the
child to pursue reunification services with the offending parent or
guardian.
A finding of severe sexual abuse, for the purposes of this
subdivision, may be based on, but is not limited to, sexual
intercourse, or stimulation involving genital-genital, oral-genital,
anal-genital, or oral-anal contact, whether between the parent or
guardian and the child or a sibling or half sibling of the child, or
between the child or a sibling or half sibling of the child and
another person or animal with the actual or implied consent of the
parent or guardian; or the penetration or manipulation of the child'
s, sibling's, or half sibling's genital organs or rectum by any
animate or inanimate object for the sexual gratification of the
parent or guardian, or for the sexual gratification of another person
with the actual or implied consent of the parent or guardian.
A finding of the infliction of severe physical harm, for the
purposes of this subdivision, may be based on, but is not limited to,
deliberate and serious injury inflicted to or on a child's body or
the body of a sibling or half sibling of the child by an act or
omission of the parent or guardian, or of another individual or
animal with the consent of the parent or guardian; deliberate and
torturous confinement of the child, sibling, or half sibling in a
closed space; or any other torturous act or omission that would be
reasonably understood to cause serious emotional damage.
(7) That the parent is not receiving reunification services for a
sibling or a half sibling of the child pursuant to paragraph (3),
(5), or (6).
(8) That the child was conceived by means of the commission of an
offense listed in Section 288 or 288.5 of the Penal Code, or by an
act committed outside of this state that, if committed in this state,
would constitute one of those offenses. This paragraph only applies
to the parent who committed the offense or act.
(9) That the child has been found to be a child described in
subdivision (g) of Section 300; that the parent or guardian of the
child willfully abandoned the child, and the court finds that the
abandonment itself constituted a serious danger to the child; or that
the parent or other person having custody of the child voluntarily
surrendered physical custody of the child pursuant to Section 1255.7
of the Health and Safety Code. For the purposes of this paragraph,
"serious danger" means that without the intervention of another
person or agency, the child would have sustained severe or permanent
disability, injury, illness, or death. For purposes of this
paragraph, "willful abandonment" shall not be construed as actions
taken in good faith by the parent without the intent of placing the
child in serious danger.
(10) That the court ordered termination of reunification services
for any siblings or half siblings of the child because the parent or
guardian failed to reunify with the sibling or half sibling after the
sibling or half sibling had been removed from that parent or
guardian pursuant to Section 361 and that parent or guardian is the
same parent or guardian described in subdivision (a) and that,
according to the findings of the court, this parent or guardian has
not subsequently made a reasonable effort to treat the problems that
led to removal of the sibling or half sibling of that child from that
parent or guardian.
(11) That the parental rights of a parent over any sibling or half
sibling of the child had been permanently severed, and this parent
is the same parent described in subdivision (a), and that, according
to the findings of the court, this parent has not subsequently made a
reasonable effort to treat the problems that led to removal of the
sibling or half sibling of that child from the parent.
(12) That the parent or guardian of the child has been convicted
of a violent felony, as defined in subdivision (c) of Section 667.5
of the Penal Code.
(13) That the parent or guardian of the child has a history of
extensive, abusive, and chronic use of drugs or alcohol and has
resisted prior court-ordered treatment for this problem during a
three-year period immediately prior to the filing of the petition
that brought that child to the court's attention, or has failed or
refused to comply with a program of drug or alcohol treatment
described in the case plan required by Section 358.1 on at least two
prior occasions, even though the programs identified were available
and accessible.
(14) That the parent or guardian of the child has advised the
court that he or she is not interested in receiving family
maintenance or family reunification services or having the child
returned to or placed in his or her custody and does not wish to
receive family maintenance or reunification services.
The parent or guardian shall be represented by counsel and shall
execute a waiver of services form to be adopted by the Judicial
Council. The court shall advise the parent or guardian of any right
to services and of the possible consequences of a waiver of services,
including the termination of parental rights and placement of the
child for adoption. The court shall not accept the waiver of services
unless it states on the record its finding that the parent or
guardian has knowingly and intelligently waived the right to
services.
(15) That the parent or guardian has on one or more occasions
willfully abducted the child or child's sibling or half sibling from
his or her placement and refused to disclose the child's or child's
sibling's or half sibling's whereabouts, refused to return physical
custody of the child or child's sibling or half sibling to his or her
placement, or refused to return physical custody of the child or
child's sibling or half sibling to the social worker.
(16) That the parent or guardian has been required by the court to
be registered on a sex offender registry under the federal Adam
Walsh Child Protection and Safety Act of 2006 (42 U.S.C. Sec. 16913
(a)), as required in Section 106(b)(2)(B)(xvi)(VI) of the federal
Child Abuse Prevention and Treatment Act (42 U.S.C. Sec. 5106a(a)(2)
(B)(xvi)(VI)).
(c) (1) In deciding whether to order reunification in any case in
which this section applies, the court shall hold a dispositional
hearing. The social worker shall prepare a report that discusses
whether reunification services shall be provided. When it is alleged,
pursuant to paragraph (2) of subdivision (b), that the parent is
incapable of utilizing services due to mental disability, the court
shall order reunification services unless competent evidence from
mental health professionals establishes that, even with the provision
of services, the parent is unlikely to be capable of adequately
caring for the child within the time limits specified in subdivision
(a).
(2) The court shall not order reunification for a parent or
guardian described in paragraph (3), (4), (6), (7), (8), (9), (10),
(11), (12), (13), (14), (15), or (16) of subdivision (b) unless the
court finds, by clear and convincing evidence, that reunification is
in the best interest of the child.
(3) In addition, the court shall not order reunification in any
situation described in paragraph (5) of subdivision (b) unless it
finds that, based on competent testimony, those services are likely
to prevent reabuse or continued neglect of the child or that failure
to try reunification will be detrimental to the child because the
child is closely and positively attached to that parent. The social
worker shall investigate the circumstances leading to the removal of
the child and advise the court whether there are circumstances that
indicate that reunification is likely to be successful or
unsuccessful and whether failure to order reunification is likely to
be detrimental to the child.
(4) Notwithstanding paragraph (2) or (3), the court shall order
reunification services for a parent described in paragraph (7), (10),
(11), or (13) of subdivision (b) if the parent was a minor at the
time when the facts that gave rise to the condition for the court to
deny reunification services occurred.
(5) The failure of the parent to respond to previous services, the
fact that the child was abused while the parent was under the
influence of drugs or alcohol, a past history of violent behavior, or
testimony by a competent professional that the parent's behavior is
unlikely to be changed by services are among the factors indicating
that reunification services are unlikely to be successful. The fact
that a parent or guardian is no longer living with an individual who
severely abused the child may be considered in deciding that
reunification services are likely to be successful, provided that the
court shall consider any pattern of behavior on the part of the
parent that has exposed the child to repeated abuse.
(d) If reunification services are not ordered pursuant to
paragraph (1) of subdivision (b) and the whereabouts of a parent
become known within six months of the out-of-home placement of the
child, the court shall order the social worker to provide family
reunification services in accordance with this subdivision.
(e) (1) If the parent or guardian is incarcerated,
institutionalized, or detained by the United States Department of
Homeland Security, or has been deported to his or her country of
origin, the court shall order reasonable services unless the court
determines, by clear and convincing evidence, those services would be
detrimental to the child. In determining detriment, the court shall
consider the age of the child, the degree of parent-child bonding,
the length of the sentence, the length and nature of the treatment,
the nature of the crime or illness, the degree of detriment to the
child if services are not offered and, for children 10 years of age
or older, the child's attitude toward the implementation of family
reunification services, the likelihood of the parent's discharge from
incarceration, institutionalization, or detention within the
reunification time limitations described in subdivision (a), and any
other appropriate factors. In determining the content of reasonable
services, the court shall consider the particular barriers to an
incarcerated, institutionalized, detained, or deported parent's
access to those court-mandated services and ability to maintain
contact with his or her child, and shall document this information in
the child's case plan. Reunification services are subject to the
applicable time limitations imposed in subdivision (a). Services may
include, but shall not be limited to, all of the following:
(A) Maintaining contact between the parent and child through
collect telephone calls.
(B) Transportation services, where appropriate.
(C) Visitation services, where appropriate.
(D) Reasonable services to extended family members or foster
parents providing care for the child if the services are not
detrimental to the child.
An incarcerated or detained parent may be required to attend
counseling, parenting classes, or vocational training programs as
part of the reunification service plan if actual access to these
services is provided. The social worker shall document in the child's
case plan the particular barriers to an incarcerated,
institutionalized, or detained parent's access to those
court-mandated services and ability to maintain
contact with his or her child.
(E) Reasonable efforts to assist parents who have been deported to
contact child welfare authorities in their country of origin, to
identify any available services that would substantially comply with
case plan requirements, to document the parents' participation in
those services, and to accept reports from local child welfare
authorities as to the parents' living situation, progress, and
participation in services.
(2) The presiding judge of the juvenile court of each county may
convene representatives of the county welfare department, the sheriff'
s department, and other appropriate entities for the purpose of
developing and entering into protocols for ensuring the notification,
transportation, and presence of an incarcerated or institutionalized
parent at all court hearings involving proceedings affecting the
child pursuant to Section 2625 of the Penal Code. The county welfare
department shall utilize the prisoner locator system developed by the
Department of Corrections and Rehabilitation to facilitate timely
and effective notice of hearings for incarcerated parents.
(3) Notwithstanding any other law, if the incarcerated parent is a
woman seeking to participate in the community treatment program
operated by the Department of Corrections and Rehabilitation pursuant
to Chapter 4.8 (commencing with Section 1174) of Title 7 of Part 2
of, Chapter 4 (commencing with Section 3410) of Title 2 of Part 3 of,
the Penal Code, the court shall determine whether the parent's
participation in a program is in the child's best interest and
whether it is suitable to meet the needs of the parent and child.
(f) If the court, pursuant to paragraph (2), (3), (4), (5), (6),
(7), (8), (9), (10), (11), (12), (13), (14), (15), or (16) of
subdivision (b) or paragraph (1) of subdivision (e), does not order
reunification services, it shall, at the dispositional hearing, that
shall include a permanency hearing, determine if a hearing under
Section 366.26 shall be set in order to determine whether adoption,
guardianship, or long-term foster care, or in the case of an Indian
child, in consultation with the child's tribe, tribal customary
adoption, is the most appropriate plan for the child, and shall
consider in-state and out-of-state placement options. If the court so
determines, it shall conduct the hearing pursuant to Section 366.26
within 120 days after the dispositional hearing. However, the court
shall not schedule a hearing so long as the other parent is being
provided reunification services pursuant to subdivision (a). The
court may continue to permit the parent to visit the child unless it
finds that visitation would be detrimental to the child.
(g) (1) Whenever a court orders that a hearing shall be held
pursuant to Section 366.26, including, when, in consultation with the
child's tribe, tribal customary adoption is recommended, it shall
direct the agency supervising the child and the county adoption
agency, or the State Department of Social Services when it is acting
as an adoption agency, to prepare an assessment that shall include:
(A) Current search efforts for an absent parent or parents and
notification of a noncustodial parent in the manner provided for in
Section 291.
(B) A review of the amount of and nature of any contact between
the child and his or her parents and other members of his or her
extended family since the time of placement. Although the extended
family of each child shall be reviewed on a case-by-case basis,
"extended family" for the purpose of this subparagraph shall include,
but not be limited to, the child's siblings, grandparents, aunts,
and uncles.
(C) An evaluation of the child's medical, developmental,
scholastic, mental, and emotional status.
(D) A preliminary assessment of the eligibility and commitment of
any identified prospective adoptive parent or guardian, including a
prospective tribal customary adoptive parent, particularly the
caretaker, to include a social history, including screening for
criminal records and prior referrals for child abuse or neglect, the
capability to meet the child's needs, and the understanding of the
legal and financial rights and responsibilities of adoption and
guardianship. If a proposed guardian is a relative of the minor, the
assessment shall also consider, but need not be limited to, all of
the factors specified in subdivision (a) of Section 361.3 and in
Section 361.4. As used in this subparagraph, "relative" means an
adult who is related to the minor by blood, adoption, or affinity
within the fifth degree of kinship, including stepparents,
stepsiblings, and all relatives whose status is preceded by the words
"great," "great-great," or "grand," or the spouse of any of those
persons even if the marriage was terminated by death or dissolution.
If the proposed permanent plan is guardianship with an approved
relative caregiver for a minor eligible for aid under the Kin-GAP
Program, as provided for in Article 4.7 (commencing with Section
11385) of Chapter 2 of Part 3 of Division 9, "relative" as used in
this section has the same meaning as "relative" as defined in
subdivision (c) of Section 11391.
(E) The relationship of the child to any identified prospective
adoptive parent or guardian, including a prospective tribal customary
parent, the duration and character of the relationship, the degree
of attachment of the child to the prospective relative guardian or
adoptive parent, the relative's or adoptive parent's strong
commitment to caring permanently for the child, the motivation for
seeking adoption or guardianship, a statement from the child
concerning placement and the adoption or guardianship, and whether
the child over 12 years of age has been consulted about the proposed
relative guardianship arrangements, unless the child's age or
physical, emotional, or other condition precludes his or her
meaningful response, and if so, a description of the condition.
(F) An analysis of the likelihood that the child will be adopted
if parental rights are terminated.
(G) In the case of an Indian child, in addition to subparagraphs
(A) to (F), inclusive, an assessment of the likelihood that the child
will be adopted, when, in consultation with the child's tribe, a
customary adoption, as defined in Section 366.24, is recommended. If
tribal customary adoption is recommended, the assessment shall
include an analysis of both of the following:
(i) Whether tribal customary adoption would or would not be
detrimental to the Indian child and the reasons for reaching that
conclusion.
(ii) Whether the Indian child cannot or should not be returned to
the home of the Indian parent or Indian custodian and the reasons for
reaching that conclusion.
(2) (A) A relative caregiver's preference for legal guardianship
over adoption, if it is due to circumstances that do not include an
unwillingness to accept legal or financial responsibility for the
child, shall not constitute the sole basis for recommending removal
of the child from the relative caregiver for purposes of adoptive
placement.
(B) Regardless of his or her immigration status, a relative
caregiver shall be given information regarding the permanency options
of guardianship and adoption, including the long-term benefits and
consequences of each option, prior to establishing legal guardianship
or pursuing adoption. If the proposed permanent plan is guardianship
with an approved relative caregiver for a minor eligible for aid
under the Kin-GAP Program, as provided for in Article 4.7 (commencing
with Section 11385) of Chapter 2 of Part 3 of Division 9, the
relative caregiver shall be informed about the terms and conditions
of the negotiated agreement pursuant to Section 11387 and shall agree
to its execution prior to the hearing held pursuant to Section
366.26. A copy of the executed negotiated agreement shall be attached
to the assessment.
(h) If, at any hearing held pursuant to Section 366.26, a
guardianship is established for the minor with an approved relative
caregiver and juvenile court dependency is subsequently dismissed,
the minor shall be eligible for aid under the Kin-GAP Program as
provided for in Article 4.5 (commencing with Section 11360) or
Article 4.7 (commencing with Section 11385), as applicable, of
Chapter 2 of Part 3 of Division 9.
(i) In determining whether reunification services will benefit the
child pursuant to paragraph (6) or (7) of subdivision (b), the court
shall consider any information it deems relevant, including the
following factors:
(1) The specific act or omission comprising the severe sexual
abuse or the severe physical harm inflicted on the child or the child'
s sibling or half sibling.
(2) The circumstances under which the abuse or harm was inflicted
on the child or the child's sibling or half sibling.
(3) The severity of the emotional trauma suffered by the child or
the child's sibling or half sibling.
(4) Any history of abuse of other children by the offending parent
or guardian.
(5) The likelihood that the child may be safely returned to the
care of the offending parent or guardian within 12 months with no
continuing supervision.
(6) Whether or not the child desires to be reunified with the
offending parent or guardian.
(j) When the court determines that reunification services will not
be ordered, it shall order that the child's caregiver receive the
child's birth certificate in accordance with Sections 16010.4 and
16010.5. Additionally, when the court determines that reunification
services will not be ordered, it shall order, when appropriate, that
a child who is 16 years of age or older receive his or her birth
certificate.
(k) The court shall read into the record the basis for a finding
of severe sexual abuse or the infliction of severe physical harm
under paragraph (6) of subdivision (b), and shall also specify the
factual findings used to determine that the provision of
reunification services to the offending parent or guardian would not
benefit the child.
SEC. 2. SECTION 1. Section 366.21 of
the Welfare and Institutions Code, as amended by Section 6 of
Chapter 219 of the Statutes of 2014, is amended to read:
366.21. (a) Every hearing conducted by the juvenile court
reviewing the status of a dependent child shall be placed on the
appearance calendar. The court shall advise all persons present at
the hearing of the date of the future hearing and of their right to
be present and represented by counsel.
(b) Except as provided in Sections 294 and 295, notice of the
hearing shall be provided pursuant to Section 293.
(c) At least 10 calendar days prior to the hearing, the social
worker shall file a supplemental report with the court regarding the
services provided or offered to the parent or legal guardian to
enable him or her to assume custody and the efforts made to achieve
legal permanence for the child if efforts to reunify fail, including,
but not limited to, efforts to maintain relationships between a
child who is 10 years of age or older and has been in out-of-home
placement for six months or longer and individuals who are important
to the child, consistent with the child's best interests; the
progress made; and, where relevant, the prognosis for return of the
child to the physical custody of his or her parent or legal guardian;
and shall make his or her recommendation for disposition. If the
child is a member of a sibling group described in subparagraph (C) of
paragraph (1) of subdivision (a) of Section 361.5, the report and
recommendation may also take into account those factors described in
subdivision (e) relating to the child's sibling group. If the
recommendation is not to return the child to a parent or legal
guardian, the report shall specify why the return of the child would
be detrimental to the child. The social worker shall provide the
parent or legal guardian, counsel for the child, and any
court-appointed child advocate with a copy of the report, including
his or her recommendation for disposition, at least 10 calendar days
prior to the hearing. In the case of a child removed from the
physical custody of his or her parent or legal guardian, the social
worker shall, at least 10 calendar days prior to the hearing, provide
a summary of his or her recommendation for disposition to any foster
parents, relative caregivers, and certified foster parents who have
been approved for adoption by the State Department of Social Services
when it is acting as an adoption agency or by a county adoption
agency, community care facility, or foster family agency having the
physical custody of the child. The social worker shall include a copy
of the Judicial Council Caregiver Information Form (JV-290) with the
summary of recommendations to the child's foster parents, relative
caregivers, or foster parents approved for adoption, in the caregiver'
s primary language when available, along with information on how to
file the form with the court.
(d) Prior to any hearing involving a child in the physical custody
of a community care facility or a foster family agency that may
result in the return of the child to the physical custody of his or
her parent or legal guardian, or in adoption or the creation of a
legal guardianship, or in the case of an Indian child, in
consultation with the child's tribe, tribal customary adoption, the
facility or agency shall file with the court a report, or a Judicial
Council Caregiver Information Form (JV-290), containing its
recommendation for disposition. Prior to the hearing involving a
child in the physical custody of a foster parent, a relative
caregiver, or a certified foster parent who has been approved for
adoption by the State Department of Social Services when it is acting
as an adoption agency or by a county adoption agency, the foster
parent, relative caregiver, or the certified foster parent who has
been approved for adoption by the State Department of Social Services
when it is acting as an adoption agency or by a county adoption
agency, may file with the court a report containing his or her
recommendation for disposition. The court shall consider the report
and recommendation filed pursuant to this subdivision prior to
determining any disposition.
(e) At the review hearing held six months after the initial
dispositional hearing, but no later than 12 months after the date the
child entered foster care as determined in Section 361.49, whichever
occurs earlier, after considering the admissible and relevant
evidence, the court shall order the return of the child to the
physical custody of his or her parent or legal guardian unless the
court finds, by a preponderance of the evidence, that the return of
the child to his or her parent or legal guardian would create a
substantial risk of detriment to the safety, protection, or physical
or emotional well-being of the child. The social worker shall have
the burden of establishing that detriment. At the hearing, the court
shall consider the criminal history, obtained pursuant to paragraph
(1) of subdivision (f) of Section 16504.5, of the parent or legal
guardian subsequent to the child's removal to the extent that the
criminal record is substantially related to the welfare of the child
or the parent's or guardian's ability to exercise custody and control
regarding his or her child, provided the parent or legal guardian
agreed to submit fingerprint images to obtain criminal history
information as part of the case plan. The court shall also consider
whether the child can be returned to the custody of his or her parent
who is enrolled in a certified substance abuse treatment facility
that allows a dependent child to reside with his or her parent. The
fact that the parent is enrolled in a certified substance abuse
treatment facility shall not be, for that reason alone, prima facie
evidence of detriment. The failure of the parent or legal guardian to
participate regularly and make substantive progress in court-ordered
treatment programs shall be prima facie evidence that return would
be detrimental. In making its determination, the court shall review
and consider the social worker's report and recommendations and the
report and recommendations of any child advocate appointed pursuant
to Section 356.5; and shall consider the efforts or progress, or
both, demonstrated by the parent or legal guardian and the extent to
which he or she availed himself or herself of services provided,
taking into account the particular barriers to a minor parent or an
incarcerated, institutionalized, detained, or deported parent's or
legal guardian's access to, those court-mandated services and ability
to maintain contact with his or her child.
Regardless of whether the child is returned to a parent or legal
guardian, the court shall specify the factual basis for its
conclusion that the return would be detrimental or would not be
detrimental. The court also shall make appropriate findings pursuant
to subdivision (a) of Section 366; and, where relevant, shall order
any additional services reasonably believed to facilitate the return
of the child to the custody of his or her parent or legal guardian.
The court shall also inform the parent or legal guardian that if the
child cannot be returned home by the 12-month permanency hearing, a
proceeding pursuant to Section 366.26 may be instituted. This section
does not apply in a case where, pursuant to Section 361.5, the court
has ordered that reunification services shall not be provided.
If the child was under three years of age on the date of the
initial removal, or is a member of a sibling group described in
subparagraph (C) of paragraph (1) of subdivision (a) of Section
361.5, and the court finds by clear and convincing evidence that the
parent failed to participate regularly and make substantive progress
in a court-ordered treatment plan, the court may schedule a hearing
pursuant to Section 366.26 within 120 days. If, however, the court
finds there is a substantial probability that the child, who was
under three years of age on the date of initial removal or is a
member of a sibling group described in subparagraph (C) of paragraph
(1) of subdivision (a) of Section 361.5, may be returned to his or
her parent or legal guardian within six months or that reasonable
services have not been provided, the court shall continue the case to
the 12-month permanency hearing.
For the purpose of placing and maintaining a sibling group
together in a permanent home, the court, in making its determination
to schedule a hearing pursuant to Section 366.26 for some or all
members of a sibling group, as described in subparagraph (C) of
paragraph (1) of subdivision (a) of Section 361.5, shall review and
consider the social worker's report and recommendations. Factors the
report shall address, and the court shall consider, may include, but
need not be limited to, whether the sibling group was removed from
parental care as a group, the closeness and strength of the sibling
bond, the ages of the siblings, the appropriateness of maintaining
the sibling group together, the detriment to the child if sibling
ties are not maintained, the likelihood of finding a permanent home
for the sibling group, whether the sibling group is currently placed
together in a preadoptive home or has a concurrent plan goal of legal
permanency in the same home, the wishes of each child whose age and
physical and emotional condition permits a meaningful response, and
the best interests of each child in the sibling group. The court
shall specify the factual basis for its finding that it is in the
best interests of each child to schedule a hearing pursuant to
Section 366.26 within 120 days for some or all of the members of the
sibling group.
If the child was removed initially under subdivision (g) of
Section 300 and the court finds by clear and convincing evidence that
the whereabouts of the parent are still unknown, or the parent has
failed to contact and visit the child, the court may schedule a
hearing pursuant to Section 366.26 within 120 days. The court shall
take into account any particular barriers to a parent's ability to
maintain contact with his or her child due to the parent's
incarceration, institutionalization, detention by the United States
Department of Homeland Security, or deportation. If the court finds
by clear and convincing evidence that the parent has been convicted
of a felony indicating parental unfitness, the court may schedule a
hearing pursuant to Section 366.26 within 120 days.
If the child had been placed under court supervision with a
previously noncustodial parent pursuant to Section 361.2, the court
shall determine whether supervision is still necessary. The court may
terminate supervision and transfer permanent custody to that parent,
as provided for by paragraph (1) of subdivision (b) of Section
361.2.
In all other cases, the court shall direct that any reunification
services previously ordered shall continue to be offered to the
parent or legal guardian pursuant to the time periods set forth in
subdivision (a) of Section 361.5, provided that the court may modify
the terms and conditions of those services.
If the child is not returned to his or her parent or legal
guardian, the court shall determine whether reasonable services that
were designed to aid the parent or legal guardian in overcoming the
problems that led to the initial removal and the continued custody of
the child have been provided or offered to the parent or legal
guardian. The court shall order that those services be initiated,
continued, or terminated.
(f) The permanency hearing shall be held no later than 12 months
after the date the child entered foster care, as that date is
determined pursuant to Section 361.49. At the permanency hearing, the
court shall determine the permanent plan for the child, which shall
include a determination of whether the child will be returned to the
child's home and, if so, when, within the time limits of subdivision
(a) of Section 361.5. After considering the relevant and admissible
evidence, the court shall order the return of the child to the
physical custody of his or her parent or legal guardian unless the
court finds, by a preponderance of the evidence, that the return of
the child to his or her parent or legal guardian would create a
substantial risk of detriment to the safety, protection, or physical
or emotional well-being of the child. The social worker shall have
the burden of establishing that detriment. At the permanency hearing,
the court shall consider the criminal history, obtained pursuant to
paragraph (1) of subdivision (f) of Section 16504.5, of the parent or
legal guardian subsequent to the child's removal to the extent that
the criminal record is substantially related to the welfare of the
child or the parent's or legal guardian's ability to exercise custody
and control regarding his or her child, provided that the parent or
legal guardian agreed to submit fingerprint images to obtain criminal
history information as part of the case plan. The court shall also
determine whether reasonable services that were designed to aid the
parent or legal guardian to overcome the problems that led to the
initial removal and continued custody of the child have been provided
or offered to the parent or legal guardian. For each youth 16 years
of age and older, the court shall also determine whether services
have been made available to assist him or her in making the
transition from foster care to independent living. The court shall
also consider whether the child can be returned to the custody of his
or her parent who is enrolled in a certified substance abuse
treatment facility that allows a dependent child to reside with his
or her parent. The fact that the parent is enrolled in a certified
substance abuse treatment facility shall not be, for that reason
alone, prima facie evidence of detriment. The failure of the parent
or legal guardian to participate regularly and make substantive
progress in court-ordered treatment programs shall be prima facie
evidence that return would be detrimental. In making its
determination, the court shall review and consider the social worker'
s report and recommendations and the report and recommendations of
any child advocate appointed pursuant to Section 356.5, shall
consider the efforts or progress, or both, demonstrated by the parent
or legal guardian and the extent to which he or she availed himself
or herself of services provided, taking into account the particular
barriers to a minor parent or an incarcerated, institutionalized,
detained, or deported parent's or legal guardian's access, to those
court-mandated services and ability to maintain contact with his or
her child, and shall make appropriate findings pursuant to
subdivision (a) of Section 366.
Regardless of whether the child is returned to his or her parent
or legal guardian, the court shall specify the factual basis for its
decision. If the child is not returned to a parent or legal guardian,
the court shall specify the factual basis for its conclusion that
the return would be detrimental. The court also shall make a finding
pursuant to subdivision (a) of Section 366. If the child is not
returned to his or her parent or legal guardian,
the court shall consider, and state for the
record, in-state and out-of-state placement options. If the child is
placed out of the state, the court shall make a determination whether
the out-of-state placement continues to be appropriate and in the
best interests of the child.
(g) If the time period in which the court-ordered services were
provided has met or exceeded the time period set forth in
subparagraph (A), (B), or (C) of paragraph (1) of subdivision (a) of
Section 361.5, as appropriate, and a child is not returned to the
custody of a parent or legal guardian at the permanency hearing held
pursuant to subdivision (f), the court shall do one of the following:
(1) Continue the case for up to six months for a permanency review
hearing, provided that the hearing shall occur within 18 months of
the date the child was originally taken from the physical custody of
his or her parent or legal guardian. The court shall continue the
case only if it finds that there is a substantial probability that
the child will be returned to the physical custody of his or her
parent or legal guardian and safely maintained in the home within the
extended period of time or that reasonable services have not been
provided to the parent or legal guardian. For the purposes of this
section, in order to find a substantial probability that the child
will be returned to the physical custody of his or her parent or
legal guardian and safely maintained in the home within the extended
period of time, the court shall be required to find all of the
following:
(A) That the parent or legal guardian has consistently and
regularly contacted and visited with the child.
(B) That the parent or legal guardian has made significant
progress in resolving problems that led to the child's removal from
the home.
(C) The parent or legal guardian has demonstrated the capacity and
ability both to complete the objectives of his or her treatment plan
and to provide for the child's safety, protection, physical and
emotional well-being, and special needs.
For purposes of this subdivision, the court's decision to continue
the case based on a finding or substantial probability that the
child will be returned to the physical custody of his or her parent
or legal guardian is a compelling reason for determining that a
hearing held pursuant to Section 366.26 is not in the best interests
of the child.
The court shall inform the parent or legal guardian that if the
child cannot be returned home by the next permanency review hearing,
a proceeding pursuant to Section 366.26 may be instituted. The court
shall not order that a hearing pursuant to Section 366.26 be held
unless there is clear and convincing evidence that reasonable
services have been provided or offered to the parent or legal
guardian.
(2) Continue the case for up to six months for a permanency review
hearing, provided that the hearing shall occur within 18 months of
the date the child was originally taken from the physical custody of
his or her parent or legal guardian, if the parent has been arrested
and issued an immigration hold, detained by the United States
Department of Homeland Security, or deported to his or her country of
origin, and the court determines either that there is a substantial
probability that the child will be returned to the physical custody
of his or her parent or legal guardian and safely maintained in the
home within the extended period of time or that reasonable services
have not been provided to the parent or legal guardian.
(3) For purposes of paragraph (2), in order to find a substantial
probability that the child will be returned to the physical custody
of his or her parent or legal guardian and safely maintained in the
home within the extended period of time, the court shall find all of
the following:
(A) The parent or legal guardian has consistently and regularly
contacted and visited with the child, taking into account any
particular barriers to a parent's ability to maintain contact with
his or her child due to the parent's arrest and receipt of an
immigration hold, detention by the United States Department of
Homeland Security, or deportation.
(B) The parent or legal guardian has made significant progress in
resolving the problems that led to the child's removal from the home.
(C) The parent or legal guardian has demonstrated the capacity or
ability both to complete the objectives of his or her treatment plan
and to provide for the child's safety, protection, physical and
emotional well-being, and special needs.
(4) Order that a hearing be held within 120 days, pursuant to
Section 366.26, but only if the court does not continue the case to
the permanency planning review hearing and there is clear and
convincing evidence that reasonable services have been provided or
offered to the parents or legal guardians. On and after January 1,
2012, a hearing pursuant to Section 366.26 shall not be ordered if
the child is a nonminor dependent, unless the nonminor dependent is
an Indian child and tribal customary adoption is recommended as the
permanent plan.
(5) Order that the child remain in long-term foster care, but only
if the court finds by clear and convincing evidence, based upon the
evidence already presented to it, including a recommendation by the
State Department of Social Services when it is acting as an adoption
agency or by a county adoption agency, that there is a compelling
reason for determining that a hearing held pursuant to Section 366.26
is not in the best interests of the child because the child is not a
proper subject for adoption and has no one willing to accept legal
guardianship. For purposes of this section, a recommendation by the
State Department of Social Services when it is acting as an adoption
agency or by a county adoption agency that adoption is not in the
best interests of the child shall constitute a compelling reason for
the court's determination. That recommendation shall be based on the
present circumstances of the child and shall not preclude a different
recommendation at a later date if the child's circumstances change.
On and after January 1, 2012, the nonminor dependent's legal status
as an adult is in and of itself a compelling reason not to hold a
hearing pursuant to Section 366.26. The court may order that a
nonminor dependent who otherwise is eligible pursuant to Section
11403 remain in a planned, permanent living arrangement.
If the court orders that a child who is 10 years of age or older
remain in long-term foster care, the court shall determine whether
the agency has made reasonable efforts to maintain the child's
relationships with individuals other than the child's siblings who
are important to the child, consistent with the child's best
interests, and may make any appropriate order to ensure that those
relationships are maintained.
If the child is not returned to his or her parent or legal
guardian, the court shall consider, and state for the record,
in-state and out-of-state options for permanent placement. If the
child is placed out of the state, the court shall make a
determination whether the out-of-state placement continues to be
appropriate and in the best interests of the child.
(h) In any case in which the court orders that a hearing pursuant
to Section 366.26 shall be held, it shall also order the termination
of reunification services to the parent or legal guardian. The court
shall continue to permit the parent or legal guardian to visit the
child pending the hearing unless it finds that visitation would be
detrimental to the child. The court shall make any other appropriate
orders to enable the child to maintain relationships with
individuals, other than the child's siblings, who are important to
the child, consistent with the child's best interests. When the court
orders a termination of reunification services to the parent or
legal guardian, it shall also order that the child's caregiver
receive the child's birth certificate in accordance with Sections
16010.4 and 16010.5. Additionally, when the court orders a
termination of reunification services to the parent or legal
guardian, it shall order, when appropriate, that a child who is 16
years of age or older receive his or her birth certificate.
(i) (1) Whenever a court orders that a hearing pursuant to Section
366.26, including, when, in consultation with the child's tribe,
tribal customary adoption is recommended, shall be held, it shall
direct the agency supervising the child and the county adoption
agency, or the State Department of Social Services when it is acting
as an adoption agency, to prepare an assessment that shall include:
(A) Current search efforts for an absent parent or parents or
legal guardians.
(B) A review of the amount of and nature of any contact between
the child and his or her parents or legal guardians and other members
of his or her extended family since the time of placement. Although
the extended family of each child shall be reviewed on a case-by-case
basis, "extended family" for the purpose of this subparagraph shall
include, but not be limited to, the child's siblings, grandparents,
aunts, and uncles.
(C) An evaluation of the child's medical, developmental,
scholastic, mental, and emotional status.
(D) A preliminary assessment of the eligibility and commitment of
any identified prospective adoptive parent or legal guardian,
including the prospective tribal customary adoptive parent,
particularly the caretaker, to include a social history including
screening for criminal records and prior referrals for child abuse or
neglect, the capability to meet the child's needs, and the
understanding of the legal and financial rights and responsibilities
of adoption and guardianship. If a proposed guardian is a relative of
the minor, the assessment shall also consider, but need not be
limited to, all of the factors specified in subdivision (a) of
Section 361.3 and in Section 361.4.
(E) The relationship of the child to any identified prospective
adoptive parent or legal guardian, the duration and character of the
relationship, the degree of attachment of the child to the
prospective relative guardian or adoptive parent, the relative's or
adoptive parent's strong commitment to caring permanently for the
child, the motivation for seeking adoption or guardianship, a
statement from the child concerning placement and the adoption or
guardianship, and whether the child, if over 12 years of age, has
been consulted about the proposed relative guardianship arrangements,
unless the child's age or physical, emotional, or other condition
precludes his or her meaningful response, and if so, a description of
the condition.
(F) A description of efforts to be made to identify a prospective
adoptive parent or legal guardian, including, but not limited to,
child-specific recruitment and listing on an adoption exchange within
the state or out of the state.
(G) An analysis of the likelihood that the child will be adopted
if parental rights are terminated.
(H) In the case of an Indian child, in addition to subparagraphs
(A) to (G), inclusive, an assessment of the likelihood that the child
will be adopted, when, in consultation with the child's tribe, a
tribal customary adoption, as defined in Section 366.24, is
recommended. If tribal customary adoption is recommended, the
assessment shall include an analysis of both of the following:
(i) Whether tribal customary adoption would or would not be
detrimental to the Indian child and the reasons for reaching that
conclusion.
(ii) Whether the Indian child cannot or should not be returned to
the home of the Indian parent or Indian custodian and the reasons for
reaching that conclusion.
(2) (A) A relative caregiver's preference for legal guardianship
over adoption, if it is due to circumstances that do not include an
unwillingness to accept legal or financial responsibility for the
child, shall not constitute the sole basis for recommending removal
of the child from the relative caregiver for purposes of adoptive
placement.
(B) Regardless of his or her immigration status, a relative
caregiver shall be given information regarding the permanency options
of guardianship and adoption, including the long-term benefits and
consequences of each option, prior to establishing legal guardianship
or pursuing adoption. If the proposed permanent plan is guardianship
with an approved relative caregiver for a minor eligible for aid
under the Kin-GAP Program, as provided for in Article 4.7 (commencing
with Section 11385) of Chapter 2 of Part 3 of Division 9, the
relative caregiver shall be informed about the terms and conditions
of the negotiated agreement pursuant to Section 11387 and shall agree
to its execution prior to the hearing held pursuant to Section
366.26. A copy of the executed negotiated agreement shall be attached
to the assessment.
(j) If, at any hearing held pursuant to Section 366.26, a
guardianship is established for the minor with an approved relative
caregiver, and juvenile court dependency is subsequently dismissed,
the minor shall be eligible for aid under the Kin-GAP Program, as
provided for in Article 4.5 (commencing with Section 11360) or
Article 4.7 (commencing with Section 11385), as applicable, of
Chapter 2 of Part 3 of Division 9.
(k) As used in this section, "relative" means an adult who is
related to the minor by blood, adoption, or affinity within the fifth
degree of kinship, including stepparents, stepsiblings, and all
relatives whose status is preceded by the words "great,"
"great-great," or "grand," or the spouse of any of those persons even
if the marriage was terminated by death or dissolution. If the
proposed permanent plan is guardianship with an approved relative
caregiver for a minor eligible for aid under the Kin-GAP Program, as
provided for in Article 4.7 (commencing with Section 11385) of
Chapter 2 of Part 3 of Division 9, "relative" as used in this section
has the same meaning as "relative" as defined in subdivision (c) of
Section 11391.
(l) For purposes of this section, evidence of any of the following
circumstances shall not, in and of itself, be deemed a failure to
provide or offer reasonable services:
(1) The child has been placed with a foster family that is
eligible to adopt a child, or has been placed in a preadoptive home.
(2) The case plan includes services to make and finalize a
permanent placement for the child if efforts to reunify fail.
(3) Services to make and finalize a permanent placement for the
child, if efforts to reunify fail, are provided concurrently with
services to reunify the family.
(m) The implementation and operation of the amendments to
subdivisions (c) and (g) enacted at the 2005-06 Regular Session shall
be subject to appropriation through the budget process and by phase,
as provided in Section 366.35.
SEC. 3. SEC. 2. Section 366.22 of
the Welfare and Institutions Code, as amended by Section 7 of Chapter
219 of the Statutes of 2014, is amended to read:
366.22. (a) When a case has been continued pursuant to paragraph
(1) or (2) of subdivision (g) of Section 366.21, the permanency
review hearing shall occur within 18 months after the date the child
was originally removed from the physical custody of his or her parent
or legal guardian. After considering the admissible and relevant
evidence, the court shall order the return of the child to the
physical custody of his or her parent or legal guardian unless the
court finds, by a preponderance of the evidence, that the return of
the child to his or her parent or legal guardian would create a
substantial risk of detriment to the safety, protection, or physical
or emotional well-being of the child. The social worker shall have
the burden of establishing that detriment. At the permanency review
hearing, the court shall consider the criminal history, obtained
pursuant to paragraph (1) of subdivision (f) of Section 16504.5, of
the parent or legal guardian subsequent to the child's removal, to
the extent that the criminal record is substantially related to the
welfare of the child or the parent's or legal guardian's ability to
exercise custody and control regarding his or her child, provided
that the parent or legal guardian agreed to submit fingerprint images
to obtain criminal history information as part of the case plan. The
court shall also consider whether the child can be returned to the
custody of his or her parent who is enrolled in a certified substance
abuse treatment facility that allows a dependent child to reside
with his or her parent. The fact that the parent is enrolled in a
certified substance abuse treatment facility shall not be, for that
reason alone, prima facie evidence of detriment. The failure of the
parent or legal guardian to participate regularly and make
substantive progress in court-ordered treatment programs shall be
prima facie evidence that return would be detrimental. In making its
determination, the court shall review and consider the social worker'
s report and recommendations and the report and recommendations of
any child advocate appointed pursuant to Section 356.5; shall
consider the efforts or progress, or both, demonstrated by the parent
or legal guardian and the extent to which he or she availed himself
or herself of services provided, taking into account the particular
barriers of a minor parent or an incarcerated or institutionalized
parent's or legal guardian's access to those court-mandated services
and ability to maintain contact with his or her child; and shall make
appropriate findings pursuant to subdivision (a) of Section 366.
Whether or not the child is returned to his or her parent or legal
guardian, the court shall specify the factual basis for its
decision. If the child is not returned to a parent or legal guardian,
the court shall specify the factual basis for its conclusion that
return would be detrimental. If the child is not returned to his or
her parent or legal guardian, the court shall consider, and state for
the record, in-state and out-of-state options for the child's
permanent placement. If the child is placed out of the state, the
court shall make a determination whether the out-of-state placement
continues to be appropriate and in the best interests of the child.
Unless the conditions in subdivision (b) are met and the child is
not returned to a parent or legal guardian at the permanency review
hearing, the court shall order that a hearing be held pursuant to
Section 366.26 in order to determine whether adoption, or, in the
case of an Indian child, in consultation with the child's tribe,
tribal customary adoption, guardianship, or long-term foster care is
the most appropriate plan for the child. On and after January 1,
2012, a hearing pursuant to Section 366.26 shall not be ordered if
the child is a nonminor dependent, unless the nonminor dependent is
an Indian child, and tribal customary adoption is recommended as the
permanent plan. However, if the court finds by clear and convincing
evidence, based on the evidence already presented to it, including a
recommendation by the State Department of Social Services when it is
acting as an adoption agency or by a county adoption agency, that
there is a compelling reason, as described in paragraph (5) of
subdivision (g) of Section 366.21, for determining that a hearing
held under Section 366.26 is not in the best interests of the child
because the child is not a proper subject for adoption and has no one
willing to accept legal guardianship, the court may, only under
these circumstances, order that the child remain in long-term foster
care. On and after January 1, 2012, the nonminor dependent's legal
status as an adult is in and of itself a compelling reason not to
hold a hearing pursuant to Section 366.26. The court may order that a
nonminor dependent who otherwise is eligible pursuant to Section
11403 remain in a planned, permanent living arrangement. If the court
orders that a child who is 10 years of age or older remain in
long-term foster care, the court shall determine whether the agency
has made reasonable efforts to maintain the child's relationships
with individuals other than the child's siblings who are important to
the child, consistent with the child's best interests, and may make
any appropriate order to ensure that those relationships are
maintained. The hearing shall be held no later than 120 days from the
date of the permanency review hearing. The court shall also order
termination of reunification services to the parent or legal
guardian. The court shall continue to permit the parent or legal
guardian to visit the child unless it finds that visitation would be
detrimental to the child. The court shall determine whether
reasonable services have been offered or provided to the parent or
legal guardian. For purposes of this subdivision, evidence of any of
the following circumstances shall not, in and of themselves, be
deemed a failure to provide or offer reasonable services:
(1) The child has been placed with a foster family that is
eligible to adopt a child, or has been placed in a preadoptive home.
(2) The case plan includes services to make and finalize a
permanent placement for the child if efforts to reunify fail.
(3) Services to make and finalize a permanent placement for the
child, if efforts to reunify fail, are provided concurrently with
services to reunify the family.
(b) If the child is not returned to a parent or legal guardian at
the permanency review hearing and the court determines by clear and
convincing evidence that the best interests of the child would be met
by the provision of additional reunification services to a parent or
legal guardian who is making significant and consistent progress in
a court-ordered residential substance abuse treatment program, a
minor parent at the initial hearing making significant and consistent
progress in establishing a safe home for the child's return, or a
parent recently discharged from incarceration, institutionalization,
or the custody of the United States Department of Homeland Security
and making significant and consistent progress in establishing a safe
home for the child's return, the court may continue the case for up
to six months for a subsequent permanency review hearing, provided
that the hearing shall occur within 24 months of the date the child
was originally taken from the physical custody of his or her parent
or legal guardian. The court shall continue the case only if it finds
that there is a substantial probability that the child will be
returned to the physical custody of his or her parent or legal
guardian and safely maintained in the home within the extended period
of time or that reasonable services have not been provided to the
parent or legal guardian. For the purposes of this section, in order
to find a substantial probability that the child will be returned to
the physical custody of his or her parent or legal guardian and
safely maintained in the home within the extended period of time, the
court shall be required to find all of the following:
(1) That the parent or legal guardian has consistently and
regularly contacted and visited with the child.
(2) That the parent or legal guardian has made significant and
consistent progress in the prior 18 months in resolving problems that
led to the child's removal from the home.
(3) The parent or legal guardian has demonstrated the capacity and
ability both to complete the objectives of his or her substance
abuse treatment plan as evidenced by reports from a substance abuse
provider as applicable, or complete a treatment plan postdischarge
from incarceration, institutionalization, or detention, or following
deportation to his or her country of origin and his or her return to
the United States, and to provide for the child's safety, protection,
physical and emotional well-being, and special needs.
For purposes of this subdivision, the court's decision to continue
the case based on a finding or substantial probability that the
child will be returned to the physical custody of his or her parent
or legal guardian is a compelling reason for determining that a
hearing held pursuant to Section 366.26 is not in the best interests
of the child.
The court shall inform the parent or legal guardian that if the
child cannot be returned home by the subsequent permanency review
hearing, a proceeding pursuant to Section 366.26 may be instituted.
The court shall not order that a hearing pursuant to Section 366.26
be held unless there is clear and convincing evidence that reasonable
services have been provided or offered to the parent or legal
guardian.
(c) (1) Whenever a court orders that a hearing pursuant to Section
366.26, including when a tribal customary adoption is recommended,
shall be held, it shall direct the agency supervising the child and
the county adoption agency, or the State Department of Social
Services when it is acting as an adoption agency, to prepare an
assessment that shall include:
(A) Current search efforts for an absent parent or parents.
(B) A review of the amount of and nature of any contact between
the child and his or her parents and other members of his or her
extended family since the time of placement. Although the extended
family of each child shall be reviewed on a case-by-case basis,
"extended family" for the purposes of this subparagraph shall
include, but not be limited to, the child's siblings, grandparents,
aunts, and uncles.
(C) An evaluation of the child's medical, developmental,
scholastic, mental, and emotional status.
(D) A preliminary assessment of the eligibility and commitment of
any identified prospective adoptive parent or legal guardian,
particularly the caretaker, to include a social history including
screening for criminal records and prior referrals for child abuse or
neglect, the capability to meet the child's needs, and the
understanding of the legal and financial rights and responsibilities
of adoption and guardianship. If a proposed legal guardian is a
relative of the minor, the assessment shall also consider, but need
not be limited to, all of the factors specified in subdivision (a) of
Section 361.3 and Section 361.4.
(E) The relationship of the child to any identified prospective
adoptive parent or legal guardian, the duration and character of the
relationship, the degree of attachment of the child to the
prospective relative guardian or adoptive parent, the relative's or
adoptive parent's strong commitment to caring permanently for the
child, the motivation for seeking adoption or legal guardianship, a
statement from the child concerning placement and the adoption or
legal guardianship, and whether the child, if over 12 years of age,
has been consulted about the proposed relative
guardianship arrangements, unless the child'
s age or physical, emotional, or other condition precludes his or her
meaningful response, and if so, a description of the condition.
(F) An analysis of the likelihood that the child will be adopted
if parental rights are terminated.
(G) In the case of an Indian child, in addition to subparagraphs
(A) to (F), inclusive, an assessment of the likelihood that the child
will be adopted, when, in consultation with the child's tribe, a
tribal customary adoption, as defined in Section 366.24, is
recommended. If tribal customary adoption is recommended, the
assessment shall include an analysis of both of the following:
(i) Whether tribal customary adoption would or would not be
detrimental to the Indian child and the reasons for reaching that
conclusion.
(ii) Whether the Indian child cannot or should not be returned to
the home of the Indian parent or Indian custodian and the reasons for
reaching that conclusion.
(2) (A) A relative caregiver's preference for legal guardianship
over adoption, if it is due to circumstances that do not include an
unwillingness to accept legal or financial responsibility for the
child, shall not constitute the sole basis for recommending removal
of the child from the relative caregiver for purposes of adoptive
placement.
(B) Regardless of his or her immigration status, a relative
caregiver shall be given information regarding the permanency options
of guardianship and adoption, including the long-term benefits and
consequences of each option, prior to establishing legal guardianship
or pursuing adoption. If the proposed permanent plan is guardianship
with an approved relative caregiver for a minor eligible for aid
under the Kin-GAP Program, as provided for in Article 4.7 (commencing
with Section 11385) of Chapter 2 of Part 3 of Division 9, the
relative caregiver shall be informed about the terms and conditions
of the negotiated agreement pursuant to Section 11387 and shall agree
to its execution prior to the hearing held pursuant to Section
366.26. A copy of the executed negotiated agreement shall be attached
to the assessment.
(d) This section shall become operative January 1, 1999. If at any
hearing held pursuant to Section 366.26, a legal guardianship is
established for the minor with an approved relative caregiver, and
juvenile court dependency is subsequently dismissed, the minor shall
be eligible for aid under the Kin-GAP Program, as provided for in
Article 4.5 (commencing with Section 11360) or Article 4.7
(commencing with Section 11385), as applicable, of Chapter 2 of Part
3 of Division 9.
(e) As used in this section, "relative" means an adult who is
related to the child by blood, adoption, or affinity within the fifth
degree of kinship, including stepparents, stepsiblings, and all
relatives whose status is preceded by the words "great,"
"great-great," or "grand," or the spouse of any of those persons even
if the marriage was terminated by death or dissolution. If the
proposed permanent plan is guardianship with an approved relative
caregiver for a minor eligible for aid under the Kin-GAP Program, as
provided for in Article 4.7 (commencing with Section 11385) of
Chapter 2 of Part 3 of Division 9, "relative" as used in this section
has the same meaning as "relative" as defined in subdivision (c) of
Section 11391.
(f) The implementation and operation of the amendments to
subdivision (a) enacted at the 2005-06 Regular Session shall be
subject to appropriation through the budget process and by phase, as
provided in Section 366.35.
SEC. 4. If the Commission on State Mandates
determines that this act contains costs mandated by the state,
reimbursement to local agencies and school districts for those costs
shall be made pursuant to Part 7 (commencing with Section 17500) of
Division 4 of Title 2 of the Government Code.