Bill Text: CA SB1056 | 2015-2016 | Regular Session | Amended
Bill Title: Juveniles: family reunification.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2016-11-30 - From committee without further action. [SB1056 Detail]
Download: California-2015-SB1056-Amended.html
BILL NUMBER: SB 1056 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 19, 2016
AMENDED IN SENATE MARCH 31, 2016
AMENDED IN SENATE MARCH 28, 2016
INTRODUCED BY Senator Liu
FEBRUARY 16, 2016
An act to amend Sections 361.5, 366.1, 366.21, 366.215, 366.22,
366.25, 16500.1, 16500.5, and 16517 of the Welfare and Institutions
Code, relating to juveniles.
LEGISLATIVE COUNSEL'S DIGEST
SB 1056, as amended, Liu. Juveniles: family reunification.
Existing law establishes the jurisdiction of the juvenile court,
which is authorized to adjudge certain children to be dependents of
the court under certain circumstances, and prescribes various
hearings and other procedures for these purposes, including the
periodic review of the status of every dependent child in foster
care, as determined by the court. Existing law requires a
supplemental report, with specified content, to be filed in
connection with this review, as specified.
This bill would require the county, if the parent is in
substantial compliance with the case plan and a lack of housing is
the sole impediment to family reunification, to include information
in the supplemental report about its consideration of the services
offered by the county welfare department to assist the parent in
securing appropriate housing. The bill would also require the court,
at the periodic reviews, to consider whether the parent is in
substantial compliance with the court-ordered case plan, whether lack
of housing is the sole impediment to family reunification, and
whether the child can be returned to the parent upon the parent
securing appropriate housing. The bill would authorize the court, if
the parent is in substantial compliance with the court-ordered case
plan and lack of housing is the sole impediment to family
reunification, to order that the child be returned to the parent's
physical custody within 5 days after the parent has secured
appropriate housing and to order supportive services for the family
to assist the family in maintaining housing, as specified.
safe and adequate housing, as confirmed by the county child
welfare agency, and to order the county to assist the family in
maintaining housing with referral to, and coordination of,
supportive services. The bill would also require the court to
consider a parent's homelessness or whether he or she is a minor
parent when deciding whether to continue the case or hold certain
hearings. By imposing additional duties on local entities and social
workers, the bill would impose a state-mandated local program.
Existing law generally requires, whenever a child is removed from
a parent's or guardian's custody, the juvenile court to order a
social worker to provide child welfare services to a child, the child'
s mother and statutorily presumed father, or guardians. Existing law
authorizes the court to extend the time that court-ordered services
are provided, and requires the court, when determining whether to
extend the time, to consider the special circumstances of certain
types of parents, including, among others, parents who have been
incarcerated or institutionalized. Existing law requires the court to
order reasonable services for those parents, as specified, taking
into consideration particular barriers to those persons. Existing law
requires the social worker to document in the child's case plan
those particular barriers.
This bill would require the court to consider the special
circumstances of homeless parents or minor parents when determining
whether to extend the time that court-ordered services are provided.
The bill would also require the court to order reasonable services
for minor parents, taking into consideration particular barriers to
those persons. The bill would require the inclusion of that
information in the child's case plan. By imposing additional duties
on local entities and social workers, the bill would impose a
state-mandated local program.
Existing law declares the intent of the Legislature to encourage
the continuity of the family unit by providing family preservation
services. Existing law specifies the types of services that may be
provided under this program, including, transportation and family
support services.
This bill would specify that the services provided may also
include housing and supportive services for homeless parents, as
specified.
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.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
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, a minor parent, a
homeless parent, 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 of
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 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 Child Abuse
Prevention and Treatment Act of 2006 (42 U.S.C. Sec. 5106a(2)(B)
(xvi)(VI)).
(c) 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).
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.
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.
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 is a minor parent or is a parent or guardian
who 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 a minor parent or 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, when appropriate.
(C) Visitation services, when 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 a minor parent or 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) of Chapter 2 of Part 3 of
Division 9, as applicable.
(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.
(l) As used in this section, "homeless" has the same meaning as
that term is defined in Section 103 of the federal McKinney-Vento
Homeless Assistance Act (42 U.S.C. Sec. 11302).
SEC. 2. Section 366.1 of the Welfare and Institutions Code is
amended to read:
366.1. Each supplemental report required to be filed pursuant to
Section 366 shall include, but not be limited to, a factual
discussion of each of the following subjects:
(a) Whether the county welfare department social worker has
considered any of the following:
(1) Child protective services, as defined in Chapter 5 (commencing
with Section 16500) of Part 4 of Division 9, as a possible solution
to the problems at hand, and has offered those services to qualified
parents, if appropriate under the circumstances.
(2) 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.
(3) If the parent is in substantial compliance with the case plan
and a lack of housing is the sole impediment to family reunification,
the services offered by the county welfare department to assist the
parent in securing appropriate housing.
(b) What plan, if any, for the return and maintenance of the child
in a safe home is recommended to the court by the county welfare
department social worker.
(c) Whether the subject child appears to be a person who is
eligible to be considered for further court action to free the child
from parental custody and control.
(d) What actions, if any, have been taken by the parent to correct
the problems that caused the child to be made a dependent child of
the court.
(e) If the parent or guardian is unwilling or unable to
participate in making an educational decision for his or her child,
or if other circumstances exist that compromise the ability of the
parent or guardian to make educational decisions for the child, the
county welfare department or social worker shall consider whether the
right of the parent or guardian to make educational decisions for
the child should be limited. If the supplemental report makes that
recommendation, the report shall identify whether there is a
responsible adult available to make educational decisions for the
child pursuant to Section 361.
(f) (1) Whether the child has any siblings under the court's
jurisdiction, and, if any siblings exist, all of the following:
(A) The nature of the relationship between the child and his or
her siblings.
(B) The appropriateness of developing or maintaining the sibling
relationships pursuant to Section 16002.
(C) If the siblings are not placed together in the same home, why
the siblings are not placed together and what efforts are being made
to place the siblings together, or why those efforts are not
appropriate.
(D) If the siblings are not placed together, all of the following:
(i) The frequency and nature of the visits between the siblings.
(ii) If there are visits between the siblings, whether the visits
are supervised or unsupervised. If the visits are supervised, a
discussion of the reasons why the visits are supervised, and what
needs to be accomplished in order for the visits to be unsupervised.
(iii) If there are visits between the siblings, a description of
the location and length of the visits.
(iv) Any plan to increase visitation between the siblings.
(E) The impact of the sibling relationships on the child's
placement and planning for legal permanence.
(2) The factual discussion shall include a discussion of
indicators of the nature of the child's sibling relationships,
including, but not limited to, whether the siblings were raised
together in the same home, whether the siblings have shared
significant common experiences or have existing close and strong
bonds, whether either sibling expresses a desire to visit or live
with his or her sibling, as applicable, and whether ongoing contact
is in the child's best emotional interests.
(g) Whether a child who is 10 years of age or older and who has
been in an out-of-home placement for six months or longer has
relationships with individuals other than the child's siblings that
are important to the child, consistent with the child's best
interests, and actions taken to maintain those relationships. The
social worker shall ask every child who is 10 years of age or older
and who has been in an out-of-home placement for six months or longer
to identify any individuals other than the child's siblings who are
important to the child, consistent with the child's best interest.
The social worker may ask any other child to provide that
information, as appropriate.
(h) The implementation and operation of the amendments to
subdivision (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. Section 366.21 of the Welfare and Institutions Code is
amended to read:
366.21. (a) Every hearing conducted by the juvenile court
reviewing the status of a dependent child shall be placed on the
appearance calendar. The court shall advise all persons present at
the hearing of the date of the future hearing and of their right to
be present and represented by counsel.
(b) Except as provided in Sections 294 and 295, notice of the
hearing shall be provided pursuant to Section 293.
(c) At least 10 calendar days prior to the hearing, the social
worker shall file a supplemental report with the court regarding the
services provided or offered to the parent or legal guardian to
enable him or her to assume custody and the efforts made to achieve
legal permanence for the child if efforts to reunify fail, including,
but not limited to, efforts to maintain relationships between a
child who is 10 years of age or older and has been in out-of-home
placement for six months or longer and individuals who are important
to the child, consistent with the child's best interests; the
progress made; and, when 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) (1) At the review hearing held six months after the initial
dispositional hearing, but no later than 12 months after the date the
child entered foster care as determined in Section 361.49, whichever
occurs earlier, after considering the admissible and relevant
evidence, the court shall order the return of the child to the
physical custody of his or her parent or legal guardian unless the
court finds, by a preponderance of the evidence, that the return of
the child to his or her parent or legal guardian would create a
substantial risk of detriment to the safety, protection, or physical
or emotional well-being of the child. The social worker shall have
the burden of establishing that detriment. At the hearing, the court
shall consider the criminal history, obtained pursuant to paragraph
(1) of subdivision (f) of Section 16504.5, of the parent or legal
guardian subsequent to the 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 a
nonminor dependent parent, or an incarcerated, institutionalized,
detained, homeless, or deported parent's or legal guardian's access
to those court-mandated services and ability to maintain contact with
his or her child. The court shall also consider whether the parent
is in substantial compliance with the court-ordered case plan,
whether lack of housing is the sole impediment to family
reunification, and whether the child can be returned to the parent
upon the parent securing appropriate housing. In making its
determination, the court shall review and consider the referral and
coordination of services provided by the county, and the efforts,
progress, or both demonstrated by the parent, and the extent to which
he or she availed himself or herself of services provided, taking
into account the particular barriers to a homeless parent's access to
those services and ability to maintain contact with his or her
child. If the parent is in substantial compliance with the
court-ordered case plan and lack of housing is the sole impediment to
family reunification, the court may order that the child be returned
to the parent's physical custody within five days after the parent
has secured appropriate housing and order supportive
services for the family to assist the family in maintaining housing.
safe and adequate housing, as confirmed by the county
child welfare agency, and may order the county to assist the family
in maintaining housing with referral to , and
coordination of , supportive services. Appropriate
housing may include, but is not limited to, housing provided through
rapid rehousing, transitional, or permanent housing programs, and
funded by federal, state, or county sources, or through various
nonprofit organizations.
(2) Regardless of whether the child is returned to a parent or
legal guardian, the court shall specify the factual basis for its
conclusion that the return would be detrimental or would not be
detrimental. The court also shall make appropriate findings pursuant
to subdivision (a) of Section 366; and, when relevant, shall order
any additional services reasonably believed to facilitate the return
of the child to the custody of his or her parent or legal guardian.
The court shall also inform the parent or legal guardian that if the
child cannot be returned home by the 12-month permanency hearing, a
proceeding pursuant to Section 366.26 may be instituted. This section
does not apply in a case where, pursuant to Section 361.5, the court
has ordered that reunification services shall not be provided.
(3) If the child was under three years of age on the date of the
initial removal, or is a member of a sibling group described in
subparagraph (C) of paragraph (1) of subdivision (a) of Section
361.5, and the court finds by clear and convincing evidence that the
parent failed to participate regularly and make substantive progress
in a court-ordered treatment plan, the court may schedule a hearing
pursuant to Section 366.26 within 120 days. If, however, the court
finds there is a substantial probability that the child, who was
under three years of age on the date of initial removal or is a
member of a sibling group described in subparagraph (C) of paragraph
(1) of subdivision (a) of Section 361.5, may be returned to his or
her parent or legal guardian within six months or that reasonable
services have not been provided, the court shall continue the case to
the 12-month permanency hearing.
(4) For the purpose of placing and maintaining a sibling group
together in a permanent home, the court, in making its determination
to schedule a hearing pursuant to Section 366.26 for some or all
members of a sibling group, as described in subparagraph (C) of
paragraph (1) of subdivision (a) of Section 361.5, shall review and
consider the social 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.
(5) If the child was removed initially under subdivision (g) of
Section 300 and the court finds by clear and convincing evidence that
the whereabouts of the parent are still unknown, or the parent has
failed to contact and visit the child, the court may schedule a
hearing pursuant to Section 366.26 within 120 days. The court shall
take into account any particular barriers to a parent's ability to
maintain contact with his or her child due to the parent's
incarceration, institutionalization, status as a minor, homelessness,
detention by the United States Department of Homeland Security, or
deportation. If the court finds by clear and convincing evidence that
the parent has been convicted of a felony indicating parental
unfitness, the court may schedule a hearing pursuant to Section
366.26 within 120 days.
(6) If the child had been placed under court supervision with a
previously noncustodial parent pursuant to Section 361.2, the court
shall determine whether supervision is still necessary. The court may
terminate supervision and transfer permanent custody to that parent,
as provided for by paragraph (1) of subdivision (b) of Section
361.2.
(7) In all other cases, the court shall direct that any
reunification services previously ordered shall continue to be
offered to the parent or legal guardian pursuant to the time periods
set forth in subdivision (a) of Section 361.5, provided that the
court may modify the terms and conditions of those services.
(8) If the child is not returned to his or her parent or legal
guardian, the court shall determine whether reasonable services that
were designed to aid the parent or legal guardian in overcoming the
problems that led to the initial removal and the continued custody of
the child have been provided or offered to the parent or legal
guardian. The court shall order that those services be initiated,
continued, or terminated.
(f) (1) The permanency hearing shall be held no later than 12
months after the date the child entered foster care, as that date is
determined pursuant to Section 361.49. At the permanency hearing, the
court shall determine the permanent plan for the child, which shall
include a determination of whether the child will be returned to the
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.
(A) At the permanency hearing, the court shall consider the
criminal history, obtained pursuant to paragraph (1) of subdivision
(f) of Section 16504.5, of the parent or legal guardian subsequent to
the 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.
(B) The court shall also consider whether the child can be
returned to the custody of his or her parent who is enrolled in a
certified substance abuse treatment facility that allows a dependent
child to reside with his or her parent. The fact that the parent is
enrolled in a certified substance abuse treatment facility shall not
be, for that reason alone, prima facie evidence of detriment. The
failure of the parent or legal guardian to participate regularly and
make substantive progress in court-ordered treatment programs shall
be prima facie evidence that return would be detrimental.
(C) In making its determination, the court shall review and
consider the social 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 a nonminor dependent parent,
or an incarcerated, institutionalized, detained, homeless, 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.
(D) The court shall also consider whether the parent is in
substantial compliance with the court-ordered case plan, whether lack
of housing is the sole impediment to family reunification, and
whether the child can be returned to the parent upon the parent
securing appropriate housing. In making its determination, the court
shall review and consider the referral and coordination of services
provided by the county, and the efforts, progress, or both
demonstrated by the parent, and the extent to which he or she availed
himself or herself of services provided, taking into account the
particular barriers to a homeless parent's access to those services
and ability to maintain contact with his or her child. If the parent
is in substantial compliance with the court-ordered case plan and
lack of housing is the sole impediment to family reunification, the
court may order that the child be returned to the parent's physical
custody within five days after the parent has secured
appropriate housing and order supportive services for the family to
assist the family in maintaining housing. safe and
adequate housing, as confirmed by the county child welfare agency,
and may order the county to assist the family in maintaining housing
with referral to, and coordination of, supportive services.
Appropriate housing may include, but is not limited to, housing
provided through rapid rehousing, transitional, or permanent housing
programs, and funded by federal, state, or county sources, or through
various nonprofit organizations.
(E) For each youth 16 years of age and older, the court shall also
determine whether services have been made available to assist him or
her in making the transition from foster care to successful
adulthood.
(2) Regardless of whether the child is returned to his or her
parent or legal guardian, the court shall specify the factual basis
for its decision. If the child is not returned to a parent or legal
guardian, the court shall specify the factual basis for its
conclusion that the return would be detrimental. The court also shall
make a finding pursuant to subdivision (a) of Section 366. If the
child is not returned to his or her parent or legal guardian, the
court shall consider, and state for the record, in-state and
out-of-state placement options. If the child is placed out of the
state, the court shall make a determination whether the out-of-state
placement continues to be appropriate and in the best interests of
the child.
(g) If the time period in which the court-ordered services were
provided has met or exceeded the time period set forth in
subparagraph (A), (B), or (C) of paragraph (1) of subdivision (a) of
Section 361.5, as appropriate, and a child is not returned to the
custody of a parent or legal guardian at the permanency hearing held
pursuant to subdivision (f), the court shall do one of the following:
(1) Continue the case for up to six months for a permanency review
hearing, provided that the hearing shall occur within 18 months of
the date the child was originally taken from the physical custody of
his or her parent or legal guardian. The court shall continue the
case only if it finds that there is a substantial probability that
the child will be returned to the physical custody of his or her
parent or legal guardian and safely maintained in the home within the
extended period of time or that reasonable services have not been
provided to the parent or legal guardian. For the purposes of this
section, in order to find a substantial probability that the child
will be returned to the physical custody of his or her parent or
legal guardian and safely maintained in the home within the extended
period of time, the court shall be required to find all of the
following:
(A) That the parent or legal guardian has consistently and
regularly contacted and visited with the child.
(B) That the parent or legal guardian has made significant
progress in resolving problems that led to the 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.
(i) 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.
(ii) The court shall inform the parent or legal guardian that if
the child cannot be returned home by the next permanency review
hearing, a proceeding pursuant to Section 366.26 may be instituted.
The court shall not order that a hearing pursuant to Section 366.26
be held unless there is clear and convincing evidence that reasonable
services have been provided or offered to the parent or legal
guardian.
(2) Continue the case for up to six months for a permanency review
hearing, provided that the hearing shall occur within 18 months of
the date the child was originally taken from the physical custody of
his or her parent or legal guardian, if the parent is a minor parent,
homeless, or 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 status as a minor, homelessness,
or 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 foster care, but only if the
court finds by clear and convincing evidence, based upon the evidence
already presented to it, including a recommendation by the State
Department of Social Services when it is acting as an adoption agency
or by a county adoption agency, that there is a compelling reason
for determining that a hearing held pursuant to Section 366.26 is not
in the best interests of the child because the child is not a proper
subject for adoption and has no one willing to accept legal
guardianship as of the hearing date. For purposes of this section, a
recommendation by the State Department of Social Services when it is
acting as an adoption agency or by a county adoption agency that
adoption is not in the best interests of the child shall constitute a
compelling reason for the 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.
(A) The court shall make factual findings identifying any barriers
to achieving the permanent plan as of the hearing date. When the
child is under 16 years of age, the court shall order a permanent
plan of return home, adoption, tribal customary adoption in the case
of an Indian child, legal guardianship, or placement with a fit and
willing relative, as appropriate. When the child is 16 years of age
or older, or is a nonminor dependent, and no other permanent plan is
appropriate at the time of the hearing, the court may order another
planned permanent living arrangement, as described in paragraph (2)
of subdivision (i) of Section 16501.
(B) If the court orders that a child who is 10 years of age or
older remain in foster care, the court shall determine whether the
agency has made reasonable efforts to maintain the 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.
(C) If the child is not returned to his or her parent or legal
guardian, the court shall consider, and state for the record,
in-state and out-of-state options for permanent placement. If the
child is placed out of the state, the court shall make a
determination whether the out-of-state placement continues to be
appropriate and in the best interests of the child.
(h) In any case in which the court orders that a hearing pursuant
to Section 366.26 shall be held, it shall also order the termination
of reunification services to the parent or legal guardian. The court
shall continue to permit the parent or legal guardian to visit the
child pending the hearing unless it finds that visitation would be
detrimental to the child. The court shall make any other appropriate
orders to enable the child to maintain relationships with
individuals, other than the 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) As used in this section, "homeless" has the same meaning as
that term is defined in Section 103 of the federal McKinney-Vento
Homeless Assistance Act (42 U.S.C. Sec. 11302). "Homelessness" is the
status of being homeless.
SEC. 4. Section 366.215 of the Welfare and Institutions Code is
amended to read:
366.215. (a) With respect to a hearing held
pursuant to subdivision (e) of Section 366.21, if the child in
question 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, the court,
in determining whether to schedule a hearing pursuant to Section
366.26, 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, status as a minor,
homelessness, detention by the United States Department of Homeland
Security, or deportation.
(b) As used in this section, "homelessness" is the status of being
homeless, as defined in Section 103 of the federal McKinney-Vento
Homeless Assistance Act (42 U.S.C. Sec. 11302).
SEC. 5. Section 366.22 of the Welfare and Institutions Code is
amended to read:
366.22. (a) (1) When a case has been continued pursuant to
paragraph (1) or (2) of subdivision (g) of Section 366.21, the
permanency review hearing shall occur within 18 months after the date
the child was originally removed from the physical custody of his or
her parent or legal guardian. After considering the admissible and
relevant evidence, the court shall order the return of the child to
the physical custody of his or her parent or legal guardian unless
the court finds, by a preponderance of the evidence, that the return
of the child to his or her parent or legal guardian would create a
substantial risk of detriment to the safety, protection, or physical
or emotional well-being of the child. The social worker shall have
the burden of establishing that detriment. At the permanency review
hearing, the court shall consider the criminal history, obtained
pursuant to paragraph (1) of subdivision (f) of Section 16504.5, of
the parent or legal guardian subsequent to the 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 a nonminor dependent parent, or an
incarcerated, institutionalized, or homeless 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. The court shall
also consider whether the parent is in substantial compliance with
the court-ordered case plan, whether lack of housing is the sole
impediment to family reunification, and whether the child can be
returned to the parent upon the parent securing appropriate housing.
In making its determination, the court shall review and consider the
referral and coordination of services provided by the county, and the
efforts, progress, or both demonstrated by the parent, and the
extent to which he or she availed himself or herself of services
provided, taking into account the particular barriers to a homeless
parent's access to those services and ability to maintain contact
with his or her child. If the parent is in substantial compliance
with the court-ordered case plan and lack of housing is the sole
impediment to family reunification, the court may order that the
child be returned to the parent's physical custody within five days
after the parent has secured appropriate housing and order
supportive services for the family to assist the family in
maintaining housing. safe and adequate housing, as
confirmed by the county child welfare agency, and may order the
county to assist the family in mainta ining housing with
referral to, and coordination of, supportive services.
Appropriate housing may include, but is not limited to, housing
provided through rapid rehousing, transitional, or permanent housing
programs, and funded by federal, state, or county sources, or through
various nonprofit organizations.
(2) Whether or not the child is returned to his or her parent or
legal guardian, the court shall specify the factual basis for its
decision. If the child is not returned to a parent or legal guardian,
the court shall specify the factual basis for its conclusion that
return would be detrimental. If the child is not returned to his or
her parent or legal guardian, the court shall consider, and state for
the record, in-state and out-of-state options for the 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.
(3) Unless the conditions in subdivision (b) are met and the child
is not returned to a parent or legal guardian at the permanency
review hearing, the court shall order that a hearing be held pursuant
to Section 366.26 in order to determine whether adoption, or, in the
case of an Indian child, in consultation with the child's tribe,
tribal customary adoption, guardianship, or continued placement in
foster care is the most appropriate plan for the child. On and after
January 1, 2012, a hearing pursuant to Section 366.26 shall not be
ordered if the child is a nonminor dependent, unless the nonminor
dependent is an Indian child, and tribal customary adoption is
recommended as the permanent plan. However, if the court finds by
clear and convincing evidence, based on the evidence already
presented to it, including a recommendation by the State Department
of Social Services when it is acting as an adoption agency or by a
county adoption agency, that there is a compelling reason, as
described in paragraph (5) of subdivision (g) of Section 366.21, for
determining that a hearing held under Section 366.26 is not in the
best interests of the child because the child is not a proper subject
for adoption and has no one willing to accept legal guardianship as
of the hearing date, the court may, only under these circumstances,
order that the child remain in foster care with a permanent plan of
return home, adoption, tribal customary adoption in the case of an
Indian child, legal guardianship, or placement with a fit and willing
relative, as appropriate. If the child is 16 years of age or older
or is a nonminor dependent, and no other permanent plan is
appropriate at the time of the hearing, the court may order another
planned permanent living arrangement, as described in paragraph (2)
of subdivision (i) of Section 16501. The court shall make factual
findings identifying any barriers to achieving the permanent plan as
of the hearing date. On and after January 1, 2012, the nonminor
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 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:
(A) The child has been placed with a foster family that is
eligible to adopt a child, or has been placed in a preadoptive home.
(B) The case plan includes services to make and finalize a
permanent placement for the child if efforts to reunify fail.
(C) Services to make and finalize a permanent placement for the
child, if efforts to reunify fail, are provided concurrently with
services to reunify the family.
(b) If the child is not returned to a parent or legal guardian at
the permanency review hearing and the court determines by clear and
convincing evidence that the best interests of the child would be met
by the provision of additional reunification services to a parent or
legal guardian who is making significant and consistent progress in
a court-ordered residential substance abuse treatment program, a
parent who was either a minor parent or a nonminor dependent parent
at the time of the initial hearing making significant and consistent
progress in establishing a safe home for the child's return, or a
parent recently discharged from incarceration, institutionalization,
or the custody of the United States Department of Homeland Security
or a parent who is homeless 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, or to locate housing, 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) As used in this section, "homeless" has the same meaning as
that term is defined in Section 103 of the federal McKinney-Vento
Homeless Assistance Act (42 U.S.C. Sec. 11302).
SEC. 6. Section 366.25 of the Welfare and Institutions Code is
amended to read:
366.25. (a) (1) When a case has been continued pursuant to
subdivision (b) of Section 366.22, the subsequent permanency review
hearing shall occur within 24 months after the date the child was
originally removed from the physical custody of his or her parent or
legal guardian. After considering the relevant and admissible
evidence, the court shall order the return of the child to the
physical custody of his or her parent or legal guardian unless the
court finds, by a preponderance of the evidence, that the return of
the child to his or her parent or legal guardian would create a
substantial risk of detriment to the safety, protection, or physical
or emotional well-being of the child. The social worker shall have
the burden of establishing that detriment. At the subsequent
permanency review hearing, the court shall consider the criminal
history, obtained pursuant to paragraph (1) of subdivision (f) of
Section 16504.5, of the parent or legal guardian subsequent to the
child's removal to the extent that the criminal record is
substantially related to the welfare of the child or 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 a parent who is enrolled in a
certified substance abuse treatment facility that allows a dependent
child to reside with his or her parent. The fact that the parent is
enrolled in a certified substance abuse treatment facility shall not
be, for that reason alone, prima facie evidence of detriment. The
failure of the parent or legal guardian to participate regularly and
make substantive progress in court-ordered treatment programs shall
be prima facie evidence that return would be detrimental. In making
its determination, the court shall review and consider the social
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; and shall make
appropriate findings pursuant to subdivision (a) of Section 366. The
court shall also consider whether the parent is in substantial
compliance with the court-ordered case plan, whether lack of housing
is the sole impediment to family reunification, and whether the child
can be returned to the parent upon the parent securing appropriate
housing. In making its determination, the court shall review and
consider the referral and coordination of services provided by the
county, and the efforts, progress, or both demonstrated by the
parent, and the extent to which he or she availed himself or herself
of services provided, taking into account the particular barriers to
a homeless parent's access to those services and ability to maintain
contact with his or her child. If the parent is in substantial
compliance with the court-ordered case plan and lack of housing is
the sole impediment to family reunification, the court may order that
the child be returned to the parent's physical custody within five
days after the parent has secured appropriate housing and
order supportive services for the family to assist the family in
maintaining housing. safe and adequate housing, as
confirmed by the county child welfare agency, and may order the
county to assist the family in maintaining housing with referral to,
and coordination of, supportive services. Appropriate housing
may include, but is not limited to, housing provided through rapid
rehousing, transitional, or permanent housing programs, and funded by
federal, state, or county sources, or through various nonprofit
organizations.
(2) Whether or not the child is returned to his or her parent or
legal guardian, the court shall specify the factual basis for its
decision. If the child is not returned to a parent or legal guardian,
the court shall specify the factual basis for its conclusion that
return would be detrimental. If the child is not returned to his or
her parent or legal guardian, the court shall consider and state for
the record, in-state and out-of-state options for the 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.
(3) If the child is not returned to a parent or legal guardian at
the subsequent permanency review hearing, the court shall order that
a hearing be held pursuant to Section 366.26 in order to determine
whether adoption, or, in the case of an Indian child, tribal
customary adoption, guardianship, or, in the case of a child 16 years
of age or older when no other permanent plan is appropriate, another
planned permanent living arrangement is the most appropriate plan
for the child. On and after January 1, 2012, a hearing pursuant to
Section 366.26 shall not be ordered if the child is a nonminor
dependent, unless the nonminor dependent is an Indian child and
tribal customary adoption is recommended as the permanent plan.
However, if the court finds by clear and convincing evidence, based
on the evidence already presented to it, including a recommendation
by the State Department of Social Services when it is acting as an
adoption agency or by a county adoption agency, that there is a
compelling reason, as described in paragraph (5) of subdivision (g)
of Section 366.21, for determining that a hearing held under Section
366.26 is not in the best interest of the child because the child is
not a proper subject for adoption or, in the case of an Indian child,
tribal customary adoption, and has no one willing to accept legal
guardianship as of the hearing date, then the court may, only under
these circumstances, order that the child remain in foster care with
a permanent plan of return home, adoption, tribal customary adoption
in the case of an Indian child, legal guardianship, or placement with
a fit and willing relative, as appropriate. If the child is 16 years
of age or older or is a nonminor dependent, and no other permanent
plan is appropriate at the time of the hearing, the court may order
another planned permanent living arrangement, as described in
paragraph (2) of subdivision (i) of Section 16501. The court shall
make factual findings identifying any barriers to achieving the
permanent plan as of the hearing date. On and after January 1, 2012,
the nonminor 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 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 subsequent permanency review hearing.
The court shall also order termination of reunification services to
the parent or legal guardian. The court shall continue to permit the
parent or legal guardian to visit the child unless it finds that
visitation would be detrimental to the child. The court shall
determine whether reasonable services have been offered or provided
to the parent or legal guardian. For purposes of this paragraph,
evidence of any of the following circumstances shall not, in and of
themselves, be deemed a failure to provide or offer reasonable
services:
(A) The child has been placed with a foster family that is
eligible to adopt a child, or has been placed in a preadoptive home.
(B) The case plan includes services to make and finalize a
permanent placement for the child if efforts to reunify fail.
(C) Services to make and finalize a permanent placement for the
child, if efforts to reunify fail, are provided concurrently with
services to reunify the family.
(b) (1) Whenever a court orders that a hearing pursuant to Section
366.26 shall be held, it shall direct the agency supervising the
child and the county adoption agency, or the State Department of
Social Services when it is acting as an adoption agency, to prepare
an assessment that shall include:
(A) Current search efforts for an absent parent or parents.
(B) A review of the amount of, and nature of, any contact between
the child and his or her parents and other members of his or her
extended family since the time of placement. Although the extended
family of each child shall be reviewed on a case-by-case basis,
"extended family" for the purposes of this paragraph shall include,
but not be limited to, the 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 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 legal guardian is a
relative of the minor, the assessment shall also consider, but need
not be limited to, all of the factors specified in subdivision (a) of
Section 361.3 and in Section 361.4.
(E) The relationship of the child to any identified prospective
adoptive parent or legal guardian, including a prospective tribal
customary adoptive parent, the duration and character of the
relationship, the degree of attachment of the child to the
prospective relative guardian or adoptive parent, the 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.
(c) If, at any hearing held pursuant to Section 366.26, a
guardianship is established for the minor with an approved relative
caregiver, and juvenile court dependency is subsequently dismissed,
the minor shall be eligible for aid under the Kin-GAP Program, as
provided for in Article 4.5 (commencing with Section 11360) or
Article 4.7 (commencing with Section 11385), as applicable, of
Chapter 2 of Part 3 of Division 9.
(d) As used in this section, "relative" means an adult who is
related to the minor by blood, adoption, or affinity within the fifth
degree of kinship, including stepparents, stepsiblings, and all
relatives whose status is preceded by the words "great,"
"great-great," or "grand," or the spouse of any of those persons even
if the marriage was terminated by death or dissolution. If the
proposed permanent plan is guardianship with an approved relative
caregiver for a minor eligible for aid under the Kin-GAP Program, as
provided in Article 4.7 (commencing with Section 11385) of Chapter 2
of Part 3 of Division 9, "relative" as used in this section has the
same meaning as "relative" as defined in subdivision (c) of Section
11391.
(e) As used in this section, "homeless" has the same meaning as
that term is defined in Section 103 of the federal McKinney-Vento
Homeless Assistance Act (42 U.S.C. Sec. 11302).
SEC. 7. Section 16500.1 of the Welfare and Institutions Code is
amended to read:
16500.1. (a) It is the intent of the Legislature to use the
strengths of families and communities to serve the needs of children
who are alleged to be abused or neglected, as described in Section
300, to reduce the necessity for removing these children from their
home, to encourage speedy reunification of families when it can be
safely accomplished, to reduce the length of stay in out-of-home care
and hasten reunification when it can be safely accomplished and lack
of housing is the only impediment to reunification, to locate
permanent homes and families for children who cannot return to their
biological families, to reduce the number of placements experienced
by these children, to ensure that children leaving the foster care
system have support within their communities, to improve the quality
and homelike nature of out-of-home care, and to foster the
educational progress of children in out-of-home care.
(b) In order to achieve the goals specified in subdivision (a),
the state shall encourage the development of approaches to child
protection that do all of the following:
(1) Allow children to remain in their own schools, in close
proximity to their families.
(2) Increase the number and quality of foster families available
to serve these children.
(3) Use a team approach to foster care that permits the biological
and foster family and the child to be part of that team.
(4) Use team decisionmaking in case planning.
(5) Provide support to foster children and foster families.
(6) Ensure that licensing requirements do not create barriers to
recruitment of qualified, high-quality foster homes.
(7) Provide training for foster parents and professional staff on
working effectively with families and communities.
(8) Encourage foster parents to serve as mentors and role models
for biological parents.
(9) Use community resources, including community-based agencies
and volunteer organizations, to assist in developing placements for
children and to provide support for children and their families.
(10) Ensure an appropriate array of placement resources for
children in need of out-of-home care.
(11) Ensure that no child leaves foster care without a lifelong
connection to a committed adult.
(12) Ensure that children are actively involved in the
case plan and permanency planning process.
(13) Provide housing and supportive services to parents who are in
substantial compliance with their case plan and lack of housing is
the only impediment to family reunification.
(c) (1) Each county shall provide the department with a disaster
response plan describing how county programs assisted under Part B
(commencing with Section 620) and Part E (commencing with Section
670) of Subchapter IV of Chapter 7 of Title 42 of the United States
Code (Titles IV-B and IV-E of the Social Security Act) would respond
to a disaster. The plan shall set forth procedures describing how
each county will perform the following services:
(A) Identify, locate, and continue availability of services for
children under state care or supervision who are displaced or
adversely affected by a disaster.
(B) Respond, as appropriate, to new child welfare cases in areas
adversely affected by a disaster, and provide services in those
cases.
(C) Remain in communication with caseworkers and other essential
child welfare personnel who are displaced because of a disaster.
(D) Preserve essential program records.
(E) Coordinate services and share information with other counties.
(2) The department shall review its disaster plan with respect to
subparagraphs (A) to (E), inclusive, of paragraph (1), and shall
revise the plan to clarify the role and responsibilities of the state
in the event of a disaster.
(3) The department shall consult with counties to identify
opportunities for collaboration between counties, and between the
county and the state, in the event of a disaster.
(d) In carrying out the requirements of subdivisions (b) and (c),
the department shall do all of the following:
(1) Consider the existing array of program models provided in
statute and in practice, including, but not limited to, wraparound
services, as defined in Section 18251, children's systems of care, as
provided for in Section 5852, the Oregon Family Unity or Santa Clara
County Family Conference models, which include family conferences at
key points in the casework process, such as when out-of-home
placement or return home is considered, and the Annie E. Casey
Foundation Family to Family initiative, which uses team
decisionmaking in case planning, community-based placement practices
requiring that children be placed in foster care in the communities
where they resided prior to placement, and involve foster families as
team members in family reunification efforts.
(2) Ensure that emergency response services, family maintenance
services, family reunification services, and permanent placement
services are coordinated with the implementation of the models
described in paragraph (1).
(3) Ensure consistency between child welfare services program
regulations and the program models described in paragraph (1).
(e) The department, in conjunction with stakeholders, including,
but not limited to, county child welfare services agencies, foster
parent and group home associations, the California Youth Connection,
and other child advocacy groups, shall review the existing child
welfare services program regulations to ensure that these regulations
are consistent with the legislative intent specified in subdivision
(a). This review shall also determine how to incorporate the best
practice guidelines for assessment of children and families receiving
child welfare and foster care services, as required by Section
16501.2.
(f) The department shall report to the Legislature on the results
of the actions taken under this section on or before January 1, 2002.
SEC. 8. Section 16500.5 of the Welfare and Institutions Code is
amended to read:
16500.5. (a) (1) The Legislature hereby declares its intent to
encourage the continuity of the family unit by:
(A) (i) Providing family preservation services.
(ii) For purposes of this subdivision, "family preservation
services" means intensive services for families whose children,
without these services, would be subject to any of the following:
(I) Be at imminent risk of out-of-home placement.
(II) Remain in existing out-of-home placement for longer periods
of time.
(III) Be placed in a more restrictive out-of-home placement.
(B) Providing supportive services for those children within the
meaning of Sections 360, 361, and 364 when they are returned to the
family unit or when a minor will probably soon be within the
jurisdiction of the juvenile court pursuant to Section 301.
(C) Providing counseling and family support services designed to
eradicate the situation that necessitated intervention.
(2) The Legislature finds that maintaining abused and neglected
children in foster care grows increasingly costly each year, and that
adequate funding for family services that might enable these
children to remain in their homes is not as readily available as
funding for foster care placement.
(3) The Legislature further finds that other state bodies have
addressed this problem through various systems of flexible
reimbursement in child welfare programs that provide for more
intensive and appropriate services to prevent foster care placement
or significantly reduce the length of stay in foster care.
(b) It is the intent of the Legislature that family preservation
and support services in California conform to the federal definitions
contained in Section 431 of the Social Security Act as contained in
Public Law 103-66, the Omnibus Budget Reconciliation Act of 1987. The
Legislature finds and declares that California's existing family
preservation programs meet the intent of the federal Promoting Safe
and Stable Families program.
(c) (1) Services that may be provided under this program may
include, but are not limited to, counseling, mental health treatment
and substance abuse treatment services, including treatment at a
residential substance abuse treatment facility that accepts families,
parenting, respite, day treatment, transportation, homemaking,
family support services, and housing and supportive services for
homeless parents of dependent children removed from the physical
custody of their parents or guardians if the parent or guardian is in
substantial compliance with their case plan and lack of housing is
the sole impediment to reunification. Each county that chooses to
provide mental health treatment and substance abuse treatment shall
identify and develop these services in consultation with county
mental health treatment and substance abuse treatment agencies.
Additional services may include those enumerated in Sections 16506
and 16507. The services to be provided pursuant to this section may
be determined by each participating county. Each county may contract
with individuals and organizations for services to be provided
pursuant to this section. Each county shall utilize available private
nonprofit resources in the county prior to developing new
county-operated resources when these private nonprofit resources are
of at least equal quality and costs as county-operated resources and
shall utilize available county resources of at least equal quality
and cost prior to new private nonprofit resources.
(2) Participating counties authorized by this subdivision shall
provide specific programs of direct services based on individual
family needs as reflected in the service plans to families of the
following:
(A) Children who are dependent children not taken from physical
custody of their parents or guardians pursuant to Section 364.
(B) Children who are dependent children removed from the physical
custody of their parents or guardian pursuant to Section 361.
(C) Children who it is determined will probably soon be within the
jurisdiction of the juvenile court pursuant to Section 301.
(D) Upon approval of the department, children who have been
adjudged wards of the court pursuant to Sections 601 and 602.
(E) Upon approval of the department, families of children subject
to Sections 726 and 727.
(F) Upon approval of the department, children who are determined
to require out-of-home placement pursuant to Section 7572.5 of the
Government Code.
(3) The services shall only be provided to families whose children
will be placed in out-of-home care without the provision of services
or to children who can be returned to their families with the
provision of services.
(4) The services selected by a participating county shall be
reasonable and meritorious and shall demonstrate cost-effectiveness
and success at avoiding out-of-home placement, or reducing the length
of stay in out-of-home placement. A county shall not expend more
funds for services under this subdivision than that amount which
would be expended for placement in out-of-home care.
(5) The program in each county shall be deemed successful if it
meets the following standards:
(A) Enables families to resolve their own problems, effectively
utilize service systems, and advocate for their children in
educational and social agencies.
(B) Enhancing family functioning by building on family strengths.
(C) At least 75 percent of the children receiving services remain
in their own home for six months after termination of services.
(D) During the first year after services are terminated:
(i) At least 60 percent of the children receiving services remain
at home one year after services are terminated.
(ii) The average length of stay in out-of-home care of children
selected to receive services who have already been removed from their
home and placed in out-of-home care is 50 percent less than the
average length of stay in out-of-home care of children who do not
receive program services.
(E) Two years after the termination of family preservation
services:
(i) The average length of out-of-home stay of children selected to
receive services under this section who, at the time of selection,
are in out-of-home care, is 50 percent less than the average length
of stay in out-of-home care for children in out-of-home care who do
not receive services pursuant to this section.
(ii) At least 60 percent of the children who were returned home
pursuant to this section remain at home.
(6) Funds used for services provided under this section shall
supplement, not supplant, child welfare services funds available for
services pursuant to Sections 16506 and 16507.
(7) Programs authorized after the original pilot projects shall
submit data to the department upon the department's request.
(d) (1) A county welfare department social worker or probation
officer may, pursuant to an appropriate court order, return a
dependent minor or ward of the court removed from the home pursuant
to Section 361 to his or her home, with appropriate interagency
family preservation program services.
(2) The county probation department may, with the approval of the
State Department of Social Services, through an interagency agreement
with the county welfare department, refer cases to the county
welfare department for the direct provision of services under this
subdivision.
(e) Foster care funds shall remain within the administrative
authority of the county welfare department and shall be used only for
placement services or placement prevention services or county
welfare department administrative cost related to the interagency
family preservation program.
(f) To the extent permitted by federal law, any federal funds
provided for services to families and children, including Title IV-E
waiver funds through the Social Security Act, may be utilized for the
purposes of this section.
(g) A county may establish family preservation programs that serve
one or more geographic areas of the county, subject to the approval
of the State Department of Social Services.
(1) All funds expended by a county for activities under this
section shall be expended by the county in a manner that will
maximize eligibility for federal financial participation.
(2) A county, subject to the approval of the State Department of
Social Services, may claim federal financial participation, if
allowable and available, as provided by the State Department of
Social Services in the federal Promoting Safe and Stable Families
program in accordance with the federal guidelines and regulations for
that county's AFDC-FC expenditures pursuant to subdivision (d) of
Section 11450, for children subject to Sections 300, 301, 360, and
364, in advance, provided that the county conducts a program of
family reunification and family maintenance services for families
receiving these services pursuant to Sections 300, 301, 360, and 364,
and as permitted by the department, children subject to Sections
601, 602, 726, and 727 of this code, and Section 7572.5 of the
Government Code.
(h) In order to maintain federal funding and meet federal
requirements, the State Department of Social Services and the Office
of Child Abuse Prevention shall provide administrative oversight,
monitoring, and consultation to ensure both of the following:
(1) Each county includes in its county plan information that
details what services are to be funded under this section and who
will be served, and how the services are coordinated with the array
of services available in the county. In order to maintain federal
funding to meet federal requirements, the State Department of Social
Services shall review these plans and provide technical assistance as
needed, as provided in Section 10601.2. In order to meet federal
requirements, the Office of Child Abuse Prevention shall require
counties to submit annual reports, as part of the current reporting
process, on program services and children and families served. The
annual reporting process shall be developed jointly by the department
and county agencies for the purpose of meeting federal reporting
requirements.
(2) In order to maximize federal financial participation for the
federal Promoting Safe and Stable Families grant, funds expended from
this program are in compliance with data-reporting requirements in
order to meet federal nonsupplantation requirements in accordance
with Section 1357.32(f) of Title 45 of the Code of Federal
Regulations, and the 25 percent state match requirement in accordance
with Section 1357.32(d) of Title 45 of the Code of Federal
Regulations.
(i) Beginning in the 2011-12 fiscal year, and for each fiscal year
thereafter, funding and expenditures for programs and activities
under this section shall be made with moneys allocated pursuant to
Section 30025 of the Government Code.
(j) As used in this section, "homeless" has the same meaning as
that term is defined in Section 103 of the federal McKinney-Vento
Homeless Assistance Act (42 U.S.C. Sec. 11302).
SEC. 9. Section 16517 of the Welfare and Institutions Code is
amended to read:
16517. (a) (1) It is the intent of the Legislature to accomplish
all of the following:
(A) To prevent the unnecessary separation of children from their
families because of homelessness or the lack of shelter.
(B) To assist in the reunification of foster children and their
families when housing remains a problem.
(C) To assist parents in securing appropriate housing and
supportive services in order to reduce foster children's length of
stay in out-of-home care and hasten reunification for foster children
and their families when a lack of housing is the sole impediment to
reunification.
(2) Through the Section 8 housing certificate program created by
Section 553 of the Cranston-Gonzalez National Affordable Housing Act
(Public Law 101-625), housing assistance may be made available to
families eligible for assistance under this program.
(b) (1) For the purposes of the Section 8 housing certificate
program created by Section 553 of the Cranston-Gonzalez National
Affordable Housing Act (Public Law 101-625), the county department of
social services is designated "the public child welfare agency."
(2) If a county chooses to participate in the Section 8 housing
certificate program, all of the following shall occur:
(A) The county department of social services shall make the
determination, pursuant to Section 553 of the Cranston-Gonzalez
National Affordable Housing Act (Public Law 101-625), that an
eligible child is at imminent risk of placement in out-of-home care
or that an eligible child in out-of-home care under its supervision
may be returned to his or her family.
(B) The county department of social services shall certify an
eligible family as one for which the lack of adequate housing is a
primary factor in the imminent placement of the family's child or
children in out-of-home care or in the delayed discharge of a child
or children to the family from out-of-home care.
(C) The county department of social services shall transmit, in
writing, its certification pursuant to subparagraph (B) to the local
public housing agency responsible, pursuant to Section 34327.3 of the
Health and Safety Code, for administering assistance under the
Section 8 housing certificate program.
(c) As used in this section, "Section 8" means Section 8 of the
United States Housing Act of 1937 (42 U.S.C. Sec. 1437 et seq.).
(d) The State Department of Social Services may, upon the request
of a local public entity, provide technical assistance for the
purpose of developing applications and plans from the local public
entity for federal funding under the Section 8 housing certificate
program created by Section 553 of the Cranston-Gonzalez National
Affordable Housing Act (Public Law 101-625).
(e) The State Department of Social Services is authorized to adopt
emergency regulations in accordance with Chapter 3.5 (commencing
with Section 11340) of Part 1 of Division 3 of Title 2 of the
Government Code in order to implement the purposes of this section.
(f) In addition to any available county funds, through Title IV-E
of the Social Security Act, any other available waiver funds may be
used by participating counties to assist parents in securing
appropriate housing and supportive services, in order to reduce a
foster child's length of stay in out-of-home care and hasten
reunification for foster children and their families when a lack of
housing is the sole impediment to reunification.
SEC. 10. 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 nor
otherwise be subject to Section 6 of Article XIII B of the California
Constitution.
