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WELFARE AND INSTITUTIONS CODE SECTION 300-304.7
300. Any child who comes within any of the following descriptions
is within the jurisdiction of the juvenile court which may adjudge
that person to be a dependent child of the court:
(a) The child has suffered, or there is a substantial risk that
the child will suffer, serious physical harm inflicted
nonaccidentally upon the child by the child's parent or guardian.
For the purposes of this subdivision, a court may find there is a
substantial risk of serious future injury based on the manner in
which a less serious injury was inflicted, a history of repeated
inflictions of injuries on the child or the child's siblings, or a
combination of these and other actions by the parent or guardian
which indicate the child is at risk of serious physical harm. For
purposes of this subdivision, "serious physical harm" does not
include reasonable and age-appropriate spanking to the buttocks where
there is no evidence of serious physical injury.
(b) The child has suffered, or there is a substantial risk that
the child will suffer, serious physical harm or illness, as a result
of the failure or inability of his or her parent or guardian to
adequately supervise or protect the child, or the willful or
negligent failure of the child's parent or guardian to adequately
supervise or protect the child from the conduct of the custodian with
whom the child has been left, or by the willful or negligent failure
of the parent or guardian to provide the child with adequate food,
clothing, shelter, or medical treatment, or by the inability of the
parent or guardian to provide regular care for the child due to the
parent's or guardian's mental illness, developmental disability, or
substance abuse. No child shall be found to be a person described by
this subdivision solely due to the lack of an emergency shelter for
the family. Whenever it is alleged that a child comes within the
jurisdiction of the court on the basis of the parent's or guardian's
willful failure to provide adequate medical treatment or specific
decision to provide spiritual treatment through prayer, the court
shall give deference to the parent's or guardian's medical treatment,
nontreatment, or spiritual treatment through prayer alone in
accordance with the tenets and practices of a recognized church or
religious denomination, by an accredited practitioner thereof, and
shall not assume jurisdiction unless necessary to protect the child
from suffering serious physical harm or illness. In making its
determination, the court shall consider (1) the nature of the
treatment proposed by the parent or guardian, (2) the risks to the
child posed by the course of treatment or nontreatment proposed by
the parent or guardian, (3) the risk, if any, of the course of
treatment being proposed by the petitioning agency, and (4) the
likely success of the courses of treatment or nontreatment proposed
by the parent or guardian and agency. The child shall continue to be
a dependent child pursuant to this subdivision only so long as is
necessary to protect the child from risk of suffering serious
physical harm or illness.
(c) The child is suffering serious emotional damage, or is at
substantial risk of suffering serious emotional damage, evidenced by
severe anxiety, depression, withdrawal, or untoward aggressive
behavior toward self or others, as a result of the conduct of the
parent or guardian or who has no parent or guardian capable of
providing appropriate care. No child shall be found to be a person
described by this subdivision if the willful failure of the parent or
guardian to provide adequate mental health treatment is based on a
sincerely held religious belief and if a less intrusive judicial
intervention is available.
(d) The child has been sexually abused, or there is a substantial
risk that the child will be sexually abused, as defined in Section
11165.1 of the Penal Code, by his or her parent or guardian or a
member of his or her household, or the parent or guardian has failed
to adequately protect the child from sexual abuse when the parent or
guardian knew or reasonably should have known that the child was in
danger of sexual abuse.
(e) The child is under the age of five and has suffered severe
physical abuse by a parent, or by any person known by the parent, if
the parent knew or reasonably should have known that the person was
physically abusing the child. For the purposes of this subdivision,
"severe physical abuse" means any of the following: any single act
of abuse which causes physical trauma of sufficient severity that, if
left untreated, would cause permanent physical disfigurement,
permanent physical disability, or death; any single act of sexual
abuse which causes significant bleeding, deep bruising, or
significant external or internal swelling; or more than one act of
physical abuse, each of which causes bleeding, deep bruising,
significant external or internal swelling, bone fracture, or
unconsciousness; or the willful, prolonged failure to provide
adequate food. A child may not be removed from the physical custody
of his or her parent or guardian on the basis of a finding of severe
physical abuse unless the social worker has made an allegation of
severe physical abuse pursuant to Section 332.
(f) The child's parent or guardian caused the death of another
child through abuse or neglect.
(g) The child has been left without any provision for support;
physical custody of the child has been voluntarily surrendered
pursuant to Section 1255.7 of the Health and Safety Code and the
child has not been reclaimed within the 14-day period specified in
subdivision (e) of that section; the child's parent has been
incarcerated or institutionalized and cannot arrange for the care of
the child; or a relative or other adult custodian with whom the child
resides or has been left is unwilling or unable to provide care or
support for the child, the whereabouts of the parent are unknown, and
reasonable efforts to locate the parent have been unsuccessful.
(h) The child has been freed for adoption by one or both parents
for 12 months by either relinquishment or termination of parental
rights or an adoption petition has not been granted.
(i) The child has been subjected to an act or acts of cruelty by
the parent or guardian or a member of his or her household, or the
parent or guardian has failed to adequately protect the child from an
act or acts of cruelty when the parent or guardian knew or
reasonably should have known that the child was in danger of being
subjected to an act or acts of cruelty.
(j) The child's sibling has been abused or neglected, as defined
in subdivision (a), (b), (d), (e), or (i), and there is a substantial
risk that the child will be abused or neglected, as defined in those
subdivisions. The court shall consider the circumstances
surrounding the abuse or neglect of the sibling, the age and gender
of each child, the nature of the abuse or neglect of the sibling, the
mental condition of the parent or guardian, and any other factors
the court considers probative in determining whether there is a
substantial risk to the child.
It is the intent of the Legislature that nothing in this section
disrupt the family unnecessarily or intrude inappropriately into
family life, prohibit the use of reasonable methods of parental
discipline, or prescribe a particular method of parenting. Further,
nothing in this section is intended to limit the offering of
voluntary services to those families in need of assistance but who do
not come within the descriptions of this section. To the extent
that savings accrue to the state from child welfare services funding
obtained as a result of the enactment of the act that enacted this
section, those savings shall be used to promote services which
support family maintenance and family reunification plans, such as
client transportation, out-of-home respite care, parenting training,
and the provision of temporary or emergency in-home caretakers and
persons teaching and demonstrating homemaking skills. The
Legislature further declares that a physical disability, such as
blindness or deafness, is no bar to the raising of happy and
well-adjusted children and that a court's determination pursuant to
this section shall center upon whether a parent's disability prevents
him or her from exercising care and control.
As used in this section "guardian" means the legal guardian of the
child.
(k) This section shall be repealed on January 1, 2006, unless a
later enacted statute extends or deletes that date.
300. Any child who comes within any of the following descriptions
is within the jurisdiction of the juvenile court which may adjudge
that person to be a dependent child of the court:
(a) The child has suffered, or there is a substantial risk that
the child will suffer, serious physical harm inflicted
nonaccidentally upon the child by the child's parent or guardian.
For the purposes of this subdivision, a court may find there is a
substantial risk of serious future injury based on the manner in
which a less serious injury was inflicted, a history of repeated
inflictions of injuries on the child or the child's siblings, or a
combination of these and other actions by the parent or guardian
which indicate the child is at risk of serious physical harm. For
purposes of this subdivision, "serious physical harm" does not
include reasonable and age-appropriate spanking to the buttocks where
there is no evidence of serious physical injury.
(b) The child has suffered, or there is a substantial risk that
the child will suffer, serious physical harm or illness, as a result
of the failure or inability of his or her parent or guardian to
adequately supervise or protect the child, or the willful or
negligent failure of the child's parent or guardian to adequately
supervise or protect the child from the conduct of the custodian with
whom the child has been left, or by the willful or negligent failure
of the parent or guardian to provide the child with adequate food,
clothing, shelter, or medical treatment, or by the inability of the
parent or guardian to provide regular care for the child due to the
parent's or guardian's mental illness, developmental disability, or
substance abuse. No child shall be found to be a person described by
this subdivision solely due to the lack of an emergency shelter for
the family. Whenever it is alleged that a child comes within the
jurisdiction of the court on the basis of the parent's or guardian's
willful failure to provide adequate medical treatment or specific
decision to provide spiritual treatment through prayer, the court
shall give deference to the parent's or guardian's medical treatment,
nontreatment, or spiritual treatment through prayer alone in
accordance with the tenets and practices of a recognized church or
religious denomination, by an accredited practitioner thereof, and
shall not assume jurisdiction unless necessary to protect the child
from suffering serious physical harm or illness. In making its
determination, the court shall consider (1) the nature of the
treatment proposed by the parent or guardian, (2) the risks to the
child posed by the course of treatment or nontreatment proposed by
the parent or guardian, (3) the risk, if any, of the course of
treatment being proposed by the petitioning agency, and (4) the
likely success of the courses of treatment or nontreatment proposed
by the parent or guardian and agency. The child shall continue to be
a dependent child pursuant to this subdivision only so long as is
necessary to protect the child from risk of suffering serious
physical harm or illness.
(c) The child is suffering serious emotional damage, or is at
substantial risk of suffering serious emotional damage, evidenced by
severe anxiety, depression, withdrawal, or untoward aggressive
behavior toward self or others, as a result of the conduct of the
parent or guardian or who has no parent or guardian capable of
providing appropriate care. No child shall be found to be a person
described by this subdivision if the willful failure of the parent or
guardian to provide adequate mental health treatment is based on a
sincerely held religious belief and if a less intrusive judicial
intervention is available.
(d) The child has been sexually abused, or there is a substantial
risk that the child will be sexually abused, as defined in Section
11165.1 of the Penal Code, by his or her parent or guardian or a
member of his or her household, or the parent or guardian has failed
to adequately protect the child from sexual abuse when the parent or
guardian knew or reasonably should have known that the child was in
danger of sexual abuse.
(e) The child is under the age of five and has suffered severe
physical abuse by a parent, or by any person known by the parent, if
the parent knew or reasonably should have known that the person was
physically abusing the child. For the purposes of this subdivision,
"severe physical abuse" means any of the following: any single act
of abuse which causes physical trauma of sufficient severity that, if
left untreated, would cause permanent physical disfigurement,
permanent physical disability, or death; any single act of sexual
abuse which causes significant bleeding, deep bruising, or
significant external or internal swelling; or more than one act of
physical abuse, each of which causes bleeding, deep bruising,
significant external or internal swelling, bone fracture, or
unconsciousness; or the willful, prolonged failure to provide
adequate food. A child may not be removed from the physical custody
of his or her parent or guardian on the basis of a finding of severe
physical abuse unless the social worker has made an allegation of
severe physical abuse pursuant to Section 332.
(f) The child's parent or guardian caused the death of another
child through abuse or neglect.
(g) The child has been left without any provision for support; the
child's parent has been incarcerated or institutionalized and cannot
arrange for the care of the child; or a relative or other adult
custodian with whom the child resides or has been left is unwilling
or unable to provide care or support for the child, the whereabouts
of the parent are unknown, and reasonable efforts to locate the
parent have been unsuccessful.
(h) The child has been freed for adoption by one or both parents
for 12 months by either relinquishment or termination of parental
rights or an adoption petition has not been granted.
(i) The child has been subjected to an act or acts of cruelty by
the parent or guardian or a member of his or her household, or the
parent or guardian has failed to adequately protect the child from an
act or acts of cruelty when the parent or guardian knew or
reasonably should have known that the child was in danger of being
subjected to an act or acts of cruelty.
(j) The child's sibling has been abused or neglected, as defined
in subdivision (a), (b), (d), (e), or (i), and there is a substantial
risk that the child will be abused or neglected, as defined in those
subdivisions. The court shall consider the circumstances
surrounding the abuse or neglect of the sibling, the age and gender
of each child, the nature of the abuse or neglect of the sibling, the
mental condition of the parent or guardian, and any other factors
the court considers probative in determining whether there is a
substantial risk to the child.
It is the intent of the Legislature that nothing in this section
disrupt the family unnecessarily or intrude inappropriately into
family life, prohibit the use of reasonable methods of parental
discipline, or prescribe a particular method of parenting. Further,
nothing in this section is intended to limit the offering of
voluntary services to those families in need of assistance but who do
not come within the descriptions of this section. To the extent
that savings accrue to the state from child welfare services funding
obtained as a result of the enactment of the act that enacted this
section, those savings shall be used to promote services which
support family maintenance and family reunification plans, such as
client transportation, out-of-home respite care, parenting training,
and the provision of temporary or emergency in-home caretakers and
persons teaching and demonstrating homemaking skills. The
Legislature further declares that a physical disability, such as
blindness or deafness, is no bar to the raising of happy and
well-adjusted children and that a court's determination pursuant to
this section shall center upon whether a parent's disability prevents
him or her from exercising care and control.
As used in this section, "guardian" means the legal guardian of
the child.
300.1. Notwithstanding subdivision (e) of Section 361 and Section
16507, family reunification services shall not be provided to a child
adjudged a dependent pursuant to subdivision (h) of Section 300.
300.2. Notwithstanding any other provision of law, the purpose of
the provisions of this chapter relating to dependent children is to
provide maximum safety and protection for children who are currently
being physically, sexually, or emotionally abused, being neglected,
or being exploited, and to ensure the safety, protection, and
physical and emotional well-being of children who are at risk of that
harm. This safety, protection, and physical and emotional
well-being may include provision of a full array of social and health
services to help the child and family and to prevent reabuse of
children. The focus shall be on the preservation of the family as
well as the safety, protection, and physical and emotional well-being
of the child. The provision of a home environment free from the
negative effects of substance abuse is a necessary condition for the
safety, protection and physical and emotional well-being of the
child. Successful participation in a treatment program for substance
abuse may be considered in evaluating the home environment. In
addition, the provisions of this chapter ensuring the confidentiality
of proceedings and records are intended to protect the privacy
rights of the child.
300.5. In any case in which a child is alleged to come within the
provisions of Section 300 on the basis that he or she is in need of
medical care, the court, in making that finding, shall give
consideration to any treatment being provided to the child by
spiritual means through prayer alone in accordance with the tenets
and practices of a recognized church or religious denomination by an
accredited practitioner thereof.
301. (a) In any case in which a social worker after investigation
of an application for petition or other investigation he or she is
authorized to make, determines that a child is within the
jurisdiction of the juvenile court or will probably soon be within
that jurisdiction, the social worker may, in lieu of filing a
petition or subsequent to dismissal of a petition already filed, and
with consent of the child's parent or guardian, undertake a program
of supervision of the child. If a program of supervision is
undertaken, the social worker shall attempt to ameliorate the
situation which brings the child within, or creates the probability
that the child will be within, the jurisdiction of Section 300 by
providing or arranging to contract for all appropriate child welfare
services pursuant to Sections 16506 and 16507.3, within the time
periods specified in those sections. No further child welfare
services shall be provided subsequent to these time limits. If the
family has refused to cooperate with the services being provided, the
social worker may file a petition with the juvenile court pursuant
to Section 332. Nothing in this section shall be construed to
prevent the social worker from filing a petition pursuant to Section
332 when otherwise authorized by law.
(b) The program of supervision of the child undertaken pursuant to
this section may call for the child to obtain care and treatment for
the misuse of, or addiction to, controlled substances from a county
mental health service or other appropriate community agency.
302. (a) A juvenile court may assume jurisdiction over a child
described in Section 300 regardless of whether the child was in the
physical custody of both parents or was in the sole legal or physical
custody of only one parent at the time that the events or conditions
occurred that brought the child within the jurisdiction of the
court.
(b) Unless their parental rights have been terminated, both
parents shall be notified of all proceedings involving the child. In
any case where the social worker is required to provide a parent or
guardian with notice of a proceeding at which the social worker
intends to present a report, the social worker shall also provide
both parents, whether custodial or noncustodial, or any guardian, or
the counsel for the parent or guardian a copy of the report prior to
the hearing, either personally or by first-class mail. The social
worker shall not charge any fee for providing a copy of a report
required by this subdivision. The social worker shall keep
confidential the address of any parent who is known to be the victim
of domestic violence.
(c) When a child is adjudged a dependent of the juvenile court,
any issues regarding custodial rights between his or her parents
shall be determined solely by the juvenile court, as specified in
Sections 304, 361.2, and 362.4, so long as the child remains a
dependent of the juvenile court.
(d) Any custody or visitation order issued by the juvenile court
at the time the juvenile court terminates its jurisdiction pursuant
to Section 362.4 regarding a child who has been previously adjudged
to be a dependent child of the juvenile court shall be a final
judgment and shall remain in effect after that jurisdiction is
terminated. The order shall not be modified in a proceeding or
action described in Section 3021 of the Family Code unless the court
finds that there has been a significant change of circumstances since
the juvenile court issued the order and modification of the order is
in the best interests of the child.
303. The court may retain jurisdiction over any person who is found
to be a dependent child of the juvenile court until the ward or
dependent child attains the age of 21 years.
304. After a petition has been filed pursuant to Section 311, and
until the time that the petition is dismissed or dependency is
terminated, no other division of any superior court may hear
proceedings pursuant to Part 2 (commencing with Section 3020) of
Division 8 of the Family Code regarding the custody of the child or
proceedings under Part 2 (commencing with Section 1500) of Division 4
of the Probate Code, except as otherwise authorized in this code,
regarding the establishment of a guardianship for the child. While
the child is under the jurisdiction of the juvenile court all issues
regarding his or her custody shall be heard by the juvenile court.
In deciding issues between the parents or between a parent and a
guardian regarding custody of a child who has been adjudicated a
dependent of the juvenile court, the juvenile court may review any
records that would be available to the domestic relations division of
a superior court hearing that matter. The juvenile court, on its
own motion, may issue an order as provided for in Section 213.5, or
as described in Section 6218 of the Family Code. The Judicial
Council shall adopt forms for these restraining orders. These form
orders shall not be confidential and shall be enforceable in the same
manner as any other order issued pursuant to Division 10 (commencing
with Section 6200) of the Family Code.
This section shall not be construed to divest the domestic
relations division of a superior court from hearing any issues
regarding the custody of a child when that child is no longer a
dependent of the juvenile court.
304.7. (a) On or before July 31, 1997, the Judicial Council shall
develop and implement standards for the education and training of all
judges who conduct hearings pursuant to Section 300. The training
shall include, but not be limited to, a component relating to Section
300 proceedings for newly appointed or elected judges and an annual
training session in Section 300 proceedings.
(b) Any commissioner or referee who is assigned to conduct
hearings held pursuant to Section 300 shall meet the minimum
standards for education and training established pursuant to
subdivision (a), by July 31, 1998.
(c) The Judicial Council shall submit an annual report to the
Legislature on compliance by judges, commissioners and referees with
the education and training standards described in subdivisions (a)
and (b).
305. Any peace officer may, without a warrant, take into temporary
custody a minor:
(a) When the officer has reasonable cause for believing that the
minor is a person described in Section 300, and, in addition, that
the minor has an immediate need for medical care, or the minor is in
immediate danger of physical or sexual abuse, or the physical
environment or the fact that the child is left unattended poses an
immediate threat to the child's health or safety. In cases in which
the child is left unattended, the peace officer shall first attempt
to contact the child's parent or guardian to determine if the parent
or guardian is able to assume custody of the child. If the parent or
guardian cannot be contacted, the peace officer shall notify a
social worker in the county welfare department to assume custody of
the child.
(b) Who is in a hospital and release of the minor to a parent
poses an immediate danger to the child's health or safety.
(c) Who is a dependent child of the juvenile court, or concerning
whom an order has been made under Section 319, when the officer has
reasonable cause for believing that the minor has violated an order
of the juvenile court or has left any placement ordered by the
juvenile court.
(d) Who is found in any street or public place suffering from any
sickness or injury which requires care, medical treatment,
hospitalization, or other remedial care.
305.5. (a) Where an Indian child, who resides or is domiciled
within a reservation of an Indian tribe that has reassumed exclusive
jurisdiction over Indian child custody proceedings pursuant to
Section 1918 of Title 25 of the United States Code, has been removed
by a state or local authority from the custody of his or her parents
or Indian custodian, the state or local authority shall provide
notice of the removal to the tribe no later than the next working day
following the removal and shall provide all relevant documentation
to the tribe regarding the removal and the child's identity. If the
tribe determines that the child is an Indian child, the state or
local authority shall transfer the child custody proceeding to the
tribe within 24 hours after receipt of written notice from the tribe
of that determination.
(b) As used in this section, the terms "Indian child" and "Indian
child custody proceedings" shall be defined as provided in the
federal Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.).
305.6. (a) Any peace officer may, without a warrant, take into
temporary custody a minor who is in a hospital if the release of the
minor to a prospective adoptive parent poses an immediate danger to
the minor's health or safety.
(b) (1) Notwithstanding subdivision (a) and Section 305, a peace
officer may not, without a warrant, take into temporary custody a
minor who is in a hospital if all of the following conditions exist:
(A) The minor is a newborn who tested positive for illegal drugs
or whose birth mother tested positive for illegal drugs.
(B) The minor is the subject of a petition for adoption and a
Health Facility Minor Release Report, prescribed by the department,
has been completed by the hospital, including the marking of the
boxes applicable to an independent adoption or agency adoption
planning, and signed by the placing birth parent or birth parents and
the prospective adoptive parent or parents, prior to the discharge
of the birth parent or the minor from the hospital. Prior to signing
of the Health Facility Minor Release Report, the birth parent or
birth parents shall be given a notice written in at least 14-point
pica type, containing substantially the following statements:
(i) That the Health Facility Minor Release Report does not
constitute consent to adoption of the minor by the prospective
adoptive parent or parents, or any other prospective adoptive parent
or parents.
(ii) That the Health Facility Minor Release Report does not
constitute a relinquishment of parental rights for the purposes of
adoption.
(iii) That the birth parent or birth parents or any person
authorized by the birth parent or birth parents may reclaim the minor
at any time from the prospective adoptive parent or parents or any
other person to whom the minor was released by the hospital, until an
adoption placement agreement or a relinquishment is signed by the
birth parent or birth parents.
This notice shall be signed by the birth parent or birth parents
and attached to the Health Facility Minor Release Report.
(C) The release of the minor to a prospective adoptive parent or
parents does not pose an immediate danger to the minor.
(D) An attorney or an adoption agency has provided documentation
stating that he or she, or the agency, is representing the
prospective adoptive parent or parents for purposes of the adoption.
In the case of an independent adoption, as defined in Section 8524
of the Family Code, the attorney or adoption agency shall provide
documentation stating that the prospective adoptive parent or parents
have been informed that the child may be eligible for benefits
provided pursuant to the Adoption Assistance Program, as set forth in
Chapter 2.1 (commencing with Section 16115) of Part 4 of Division 9,
only if, at the time the petition is filed, the child has met the
requirements to receive federal supplemental security income benefits
pursuant to Subchapter XVI (commencing with Section 1381) of Chapter
7 of Title 42 of the United States Code, as determined and
documented by the federal Social Security Administration.
(E) The prospective adoptive parent or parents or their
representative provides a copy of the Health Facility Minor Release
Report with the signed notice to the birth parent or birth parents as
described in subparagraph (B) and a copy of the petition for
adoption to the local child protective services agency or to the
peace officer who is at the hospital to take the minor into temporary
custody.
(2) Notwithstanding Section 305 or subdivision (a) of this
section, a peace officer may not, without a warrant, take into
temporary custody a minor who is in a hospital if all of the
following conditions exist:
(A) The minor is a newborn who tested positive for illegal drugs
or whose birth mother tested positive for illegal drugs.
(B) The minor is the subject of a petition for adoption and a
prospective adoptive parent or prospective adoptive parents have been
licensed to act as a foster parent or foster parents of the minor
pending finalization of the petition for adoption.
(C) The release of the minor to the prospective adoptive parent or
prospective adoptive parents does not pose an immediate danger to
the minor.
(D) The prospective adoptive parent or parents or their
representative provides a copy of the petition for adoption and
documents evidencing licensure as a foster parent or foster parents
to the local child protective services agency or to the peace officer
who is at the hospital to take the minor into temporary custody.
(3) If at the time the minor is released to the custody of a
prospective adoptive parent or parents or their representative
pursuant to paragraph (1) or (2), the petition for adoption of the
minor has not been filed with the court, the petition for adoption
shall be filed within 15 calendar days of the date the birth parent
was released from the hospital.
(4) A copy of an adoption placement agreement signed by the
placing birth parent or birth parents and the prospective adoptive
parent or parents may be used in place of the Health Facility Minor
Release Report and notice to the birth parent or birth parents as
described in subparagraph (B) of paragraph (1).
(c) Nothing in this section is intended to create a duty that
requires law enforcement to investigate the prospective adoptive
parent or parents.
306. (a) Any social worker in a county welfare department, or an
Indian tribe that has entered into an agreement pursuant to Section
10553.1 while acting within the scope of his or her regular duties
under the direction of the juvenile court and pursuant to subdivision
(b) of Section 272, may do all of the following:
(1) Receive and maintain, pending investigation, temporary custody
of a minor who is described in Section 300, and who has been
delivered by a peace officer.
(2) Take into and maintain temporary custody of, without a
warrant, a minor who has been declared a dependent child of the
juvenile court under Section 300 or who the social worker has
reasonable cause to believe is a person described in subdivision (b)
or (g) of Section 300, and the social worker has reasonable cause to
believe that the minor has an immediate need for medical care or is
in immediate danger of physical or sexual abuse or the physical
environment poses an immediate threat to the child's health or
safety.
(b) Before taking a minor into custody, a social worker shall
consider whether the child can remain safely in his or her residence.
The consideration of whether the child can remain safely at home
shall include, but not be limited to, the following factors:
(1) Whether there are any reasonable services available to the
worker which, if provided to the minor's parent, guardian, caretaker,
or to the minor, would eliminate the need to remove the minor from
the custody of his or her parent, guardian, or caretaker.
(2) Whether a referral to public assistance pursuant to Chapter 2
(commencing with Section 11200) of Part 3, Chapter 7 (commencing with
Section 14000) of Part 3, Chapter 1 (commencing with Section 17000)
of Part 5, and Chapter 10 (commencing with Section 18900) of Part 6,
of Division 9 would eliminate the need to take temporary custody of
the minor. If those services are available they shall be utilized.
(3) Whether a nonoffending caretaker can provide for and protect
the child from abuse and neglect and whether the alleged perpetrator
voluntarily agrees to withdraw from the residence, withdraws from the
residence, and is likely to remain withdrawn from the residence.
306.5. In any case in which a social worker takes a minor into
custody pursuant to Section 306, the social worker shall, to the
extent that it is practical and appropriate, place the minor together
with any siblings or half-siblings who are also detained or include
in the report prepared pursuant to Section 319 a statement of his or
her continuing efforts to place the siblings together or why those
efforts are not appropriate.
307. A peace officer or probation officer who takes a minor into
temporary custody under the provisions of Section 305 shall
thereafter proceed as follows:
(a) The officer may release the minor.
(b) The officer may prepare in duplicate a written notice for the
parent or parents of the minor to appear with the minor before the
probation officer of the county in which the minor was taken into
custody at a time and place specified in the notice. The notice
shall also contain a concise statement of the reasons the minor was
taken into custody. The officer shall deliver one copy of the notice
to the minor and a parent, guardian, or responsible relative of the
minor and may require the minor and the parent, guardian, or relative
to sign a written promise that he or she shall appear at the time
and place designated in the notice. Upon the execution of the
promise to appear, the officer shall immediately release the minor.
The officer shall, as soon as practicable, file one copy of the
notice with the probation officer.
(c) The officer may take the minor without unnecessary delay
before the probation officer of the county in which the minor was
taken into custody, or in which the minor resides, or in which the
acts take place or the circumstances exist which are alleged to bring
the minor within the provisions of Section 300, and deliver the
minor into the custody of the probation officer.
In determining which disposition of the minor shall be made, the
officer shall give preference to the alternative which least
interferes with the parents' or guardians' custody of the minor if
this alternative is compatible with the safety of the minor. The
officer shall also consider the needs of the minor for the least
restrictive environment and the protective needs of the community.
307.4. (a) Any peace officer, probation officer, or social worker
who takes into temporary custody pursuant to Sections 305 to 307,
inclusive, a minor who comes within the description of Section 300
shall immediately inform, through the most efficient means available,
the parent, guardian, or responsible relative, that the minor has
been taken into protective custody and that a written statement is
available which explains the parent's or guardian's procedural rights
and the preliminary stages of the dependency investigation and
hearing. The Judicial Council shall, in consultation with the County
Welfare Directors Association of California, adopt a form for the
written statement, which shall be in simple language and shall be
printed and distributed by the county. The written statement shall
be made available for distribution through all public schools,
probation offices, and appropriate welfare offices. It shall
include, but is not limited to, the following information:
(1) The conditions under which the minor will be released,
hearings which may be required, and the means whereby further
specific information about the minor's case and conditions of
confinement may be obtained.
(2) The rights to counsel, privileges against self-incrimination,
and rights to appeal possessed by the minor, and his or her parents,
guardians, or responsible relative.
(b) If a good faith attempt was made at notification, the failure
on the part of the peace officer, probation officer, or social worker
to notify the parent or guardian that the written information
required by subdivision (a) is available shall be considered to be
due to circumstances beyond the control of the peace officer,
probation officer, or social worker, and shall not be construed to
permit a new defense to any juvenile or judicial proceeding or to
interfere with any rights, procedures, or investigations accorded
under any other law.
307.5. Notwithstanding the provisions of Section 307, an officer
who takes a minor suspected of being a person described in Section
300 into temporary custody pursuant to subdivision (a) of Section 305
may, in a case where he or she deems that it is in the best interest
of the minor and the public, take the minor to a community service
program for abused or neglected children. Organizations or programs
receiving referrals pursuant to this section shall have a contract or
an agreement with the county to provide shelter care or counseling.
Employees of a program receiving referrals pursuant to this section
are "child care custodians" for the purpose of the requirements of
Section 11165.7 of the Penal Code. The receiving organization shall
take immediate steps to notify the minor's parent, guardian, or a
responsible relative of the place to which the minor was taken.
308. (a) When a peace officer or social worker takes a minor into
custody pursuant to this article, he or she shall take immediate
steps to notify the minor's parent, guardian, or a responsible
relative that the minor is in custody and that the child has been
placed in a facility authorized by law to care for the child, and
shall provide a telephone number at which the minor may be contacted.
The confidentiality of the address of any licensed foster family
home in which the child has been placed shall be maintained until the
dispositional hearing, at which time the judge may authorize, upon a
finding of good cause, the disclosure of the address. However, the
court may order the release of the address of the licensed foster
family home to the minor's parent, guardian, or responsible relative
upon notification of the licensed foster family home in cases where a
petition to challenge jurisdiction or other motion to delay the
dispositional hearing beyond 60 days after the hearing at which the
minor was ordered removed or detained, pursuant to subdivision (b) of
Section 352, is granted. Moreover, a foster parent may authorize
the release of the address of the foster family home at any time
during the placement. The county welfare department shall make a
diligent and reasonable effort to ensure regular telephone contact
between the parent and a child of any age, prior to the detention
hearing, unless that contact would be detrimental to the child. The
initial telephone contact shall take place as soon as practicable,
but no later than five hours after the child is taken into custody.
(b) Immediately after being taken to a place of confinement
pursuant to this article and, except where physically impossible, no
later than one hour after he or she has been taken into custody, a
minor 10 years of age or older shall be advised that he or she has
the right to make at least two telephone calls from the place where
he or she is being held, one call completed to his or her parent,
guardian, or a responsible relative, and another call completed to an
attorney. The calls shall be at public expense, if the calls are
completed to telephone numbers within the local calling area, and in
the presence of a public officer or employee. Any public officer or
employee who willfully deprives a minor taken into custody of his or
her right to make these telephone calls is guilty of a misdemeanor.
309. (a) Upon delivery to the social worker of a child who has been
taken into temporary custody under this article, the social worker
shall immediately investigate the circumstances of the child and the
facts surrounding the child's being taken into custody and attempt to
maintain the child with the child's family through the provision of
services. The social worker shall immediately release the child to
the custody of the child's parent, guardian, or responsible relative
unless one or more of the following conditions exist:
(1) The child has no parent, guardian, or responsible relative; or
the child's parent, guardian, or responsible relative is not willing
to provide care for the child.
(2) Continued detention of the child is a matter of immediate and
urgent necessity for the protection of the child and there are no
reasonable means by which the child can be protected in his or her
home or the home of a responsible relative.
(3) There is substantial evidence that a parent, guardian, or
custodian of the child is likely to flee the jurisdiction of the
court.
(4) The child has left a placement in which he or she was placed
by the juvenile court.
(5) The parent or other person having lawful custody of the child
voluntarily surrendered physical custody of the child pursuant to
Section 1255.7 of the Health and Safety Code and did not reclaim the
child within the 14-day period specified in subdivision (e) of that
section.
(b) In any case in which there is reasonable cause for believing
that a child who is under the care of a physician or surgeon or a
hospital, clinic, or other medical facility and cannot be immediately
moved is a person described in Section 300, the child shall be
deemed to have been taken into temporary custody and delivered to the
social worker for the purposes of this chapter while the child is at
the office of the physician or surgeon or the medical facility.
(c) If the child is not released to his or her parent or guardian,
the child shall be deemed detained for purposes of this chapter.
(d) (1) If an able and willing relative, as defined in Section
319, or an able and willing nonrelative extended family member, as
defined in Section 362.7, is available and requests temporary
placement of the child pending the detention hearing, the county
welfare department shall initiate an assessment of the relative's or
nonrelative extended family member's suitability, which shall include
an in-home inspection to assess the safety of the home and the
ability of the relative or nonrelative extended family member to care
for the child's needs, and a consideration of the results of a
criminal records check and a check of allegations of prior child
abuse or neglect concerning the relative or nonrelative extended
family member and other adults in the home. Upon completion of this
assessment, the child may be placed in the approved home.
(2) The standards used to evaluate and grant or deny approval of
the home of the relative and of the home of a nonrelative extended
family member, as described in Section 362.7, shall be the same
standards set forth in regulations for the licensing of foster family
homes which prescribe standards of safety and sanitation for the
physical plant and standards for basic personal care, supervision,
and services provided by the caregiver.
(3) If a relative or nonrelative extended family member meets all
other conditions for approval, except for the receipt of the Federal
Bureau of Investigation's criminal history information for the
relative or nonrelative extended family member, and other adults in
the home, as indicated, the county welfare department may approve the
home and document that approval, if the relative or nonrelative
extended family member, and each adult in the home, has signed and
submitted a statement that he or she has never been convicted of a
crime in the United States, other than a traffic infraction as
defined in paragraph (1) of subdivision (a) of Section 42001 of the
Vehicle Code. If, after the approval has been granted, the
department determines that the relative or nonrelative extended
family member or other adult in the home has a criminal record, the
approval may be terminated.
(e) This section shall be repealed on January 1, 2006, unless a
later enacted statute extends or deletes that date.
309. (a) Upon delivery to the social worker of a child who has been
taken into temporary custody under this article, the social worker
shall immediately investigate the circumstances of the child and the
facts surrounding the child's being taken into custody and attempt to
maintain the child with the child's family through the provision of
services. The social worker shall immediately release the child to
the custody of the child's parent, guardian, or responsible relative
unless one or more of the following conditions exist:
(1) The child has no parent, guardian, or responsible relative; or
the child's parent, guardian, or responsible relative is not willing
to provide care for the child.
(2) Continued detention of the child is a matter of immediate and
urgent necessity for the protection of the child and there are no
reasonable means by which the child can be protected in his or her
home or the home of a responsible relative.
(3) There is substantial evidence that a parent, guardian, or
custodian of the child is likely to flee the jurisdiction of the
court.
(4) The child has left a placement in which he or she was placed
by the juvenile court.
(b) In any case in which there is reasonable cause for believing
that a child who is under the care of a physician or surgeon or a
hospital, clinic, or other medical facility and cannot be immediately
moved is a person described in Section 300, the child shall be
deemed to have been taken into temporary custody and delivered to the
social worker for the purposes of this chapter while the child is at
the office of the physician or surgeon or the medical facility.
(c) If the child is not released to his or her parent or guardian,
the child shall be deemed detained for purposes of this chapter.
(d) If an able and willing relative, as defined in Section 319, or
an able and willing nonrelative extended family member, as defined
in Section 362.7, is available and requests temporary placement of
the child pending the detention hearing, the county welfare
department shall initiate an assessment of the relative's or
nonrelative extended family member's suitability, which shall include
an in-home inspection to assess the safety of the home and the
ability of the relative or nonrelative extended family member to care
for the child's needs, and a consideration of the results of a
criminal records check and a check of allegations of prior child
abuse or neglect concerning the relative or nonrelative extended
family member and other adults in the home. Upon completion of this
assessment, the child may be placed in the approved home. The
standards used to evaluate and grant or deny approval of the home of
a relative or a nonrelative extended family member, as described in
Section 362.7, shall be the same standards set forth in regulations
for licensing foster family homes. These regulations prescribe
standards of safety and sanitation for the physical plant and
standards for basic personal care, supervision, and services provided
by the caregiver. If a relative or nonrelative extended family
member meets all other conditions for approval, except for the
receipt of the Federal Bureau of Investigation's criminal history
information for a relative, or nonrelative extended family member,
and other adults in the home, as indicated, the county welfare
department may approve the home and document that approval, if the
relative, or nonrelative extended family member, and each adult in
the home has signed and submitted a statement that he or she has
never been convicted of a crime in the United States, other than a
traffic infraction as defined in paragraph (1) of subdivision (a) of
Section 42001 of the Vehicle Code. If, after the approval has been
granted, the department determines that the relative or nonrelative
extended family member or other adult in the home has a criminal
record, the approval may be terminated.
310. As a condition for the release of such minor, the probation
officer may require such minor or his parent, guardian, or relative,
or both, to sign a written promise that either or both of them will
appear before the probation officer at a suitable place designated by
the probation officer at a specified time.
311. (a) If the probation officer determines that the minor shall
be retained in custody, he or she shall immediately file a petition
pursuant to Section 332 with the clerk of the juvenile court who
shall set the matter for hearing on the detention hearing calendar.
(b) In the hearing, the child, parents, or guardians have a
privilege against self-incrimination and have a right to
confrontation by, and cross-examination of, any person examined by
the court as provided in Section 319.
313. (a) Whenever a minor is taken into custody by a peace officer
or probation officer, except when such minor willfully misrepresents
himself as 18 or more years of age, such minor shall be released
within 48 hours after having been taken into custody, excluding
nonjudicial days, unless within said period of time a petition to
declare him a dependent child has been filed pursuant to the
provisions of this chapter.
(b) Whenever a minor who has been held in custody for more than
six hours by the probation officer is subsequently released and no
petition is filed, the probation officer shall prepare a written
explanation of why the minor was held in custody for more than six
hours. The written explanation shall be prepared within 72 hours
after the minor is released from custody and filed in the record of
the case. A copy of the written explanation shall be sent to the
parents, guardian, or other person having care or custody of the
minor.
314. When a minor willfully misrepresents himself to be 18 or more
years of age when taken into custody by a peace officer or probation
officer, and this misrepresentation effects a material delay in
investigation which prevents the filing of a petition pursuant to the
provisions of this chapter, such petition or complaint shall be
filed within 48 hours from the time his true age is determined,
excluding nonjudicial days. If, in such cases, the petition is not
filed within the time prescribed by this section, the minor shall be
immediately released from custody.
315. If a minor has been taken into custody under this article and
not released to a parent or guardian, the juvenile court shall hold a
hearing (which shall be referred to as a "detention hearing") to
determine whether the minor shall be further detained. This hearing
shall be held as soon as possible, but in any event before the
expiration of the next judicial day after a petition to declare the
minor a dependent child has been filed. If the hearing is not held
within the period prescribed by this section, the minor shall be
released from custody.
316. Upon his or her appearance before the court at the detention
hearing, each parent or guardian and the minor, if present, shall
first be informed of the reasons why the minor was taken into
custody, the nature of the juvenile court proceedings, and the right
of each parent or guardian and any minor to be represented at every
stage of the proceedings by counsel.
316.1. (a) Upon his or her appearance before the court, each parent
or guardian shall designate for the court his or her permanent
mailing address. The court shall advise each parent or guardian that
the designated mailing address will be used by the court and the
social services agency for notice purposes unless and until the
parent or guardian notifies the court or the social services agency
of a new mailing address in writing.
(b) The Judicial Council may develop a form for the designation of
a permanent mailing address by parents and guardians for use by the
courts and social services agencies.
316.2. (a) At the detention hearing, or as soon thereafter as
practicable, the court shall inquire of the mother and any other
appropriate person as to the identity and address of all presumed or
alleged fathers. The presence at the hearing of a man claiming to be
the father shall not relieve the court of its duty of inquiry. The
inquiry shall include at least all of the following, as the court
deems appropriate:
(1) Whether a judgment of paternity already exists.
(2) Whether the mother was married or believed she was married at
the time of conception of the child or at any time thereafter.
(3) Whether the mother was cohabiting with a man at the time of
conception or birth of the child.
(4) Whether the mother has received support payments or promises
of support with respect to the child or in connection with her
pregnancy.
(5) Whether any man has formally or informally acknowledged or
declared his possible paternity of the child, including by signing a
voluntary declaration of paternity.
(6) Whether paternity tests have been administered and the
results, if any.
(7) Whether any man otherwise qualifies as a presumed father
pursuant to Section 7611, or any other provision, of the Family Code.
(b) If, after the court inquiry, one or more men are identified as
an alleged father, each alleged father shall be provided notice at
his last and usual place of abode by certified mail return receipt
requested alleging that he is or could be the father of the child.
The notice shall state that the child is the subject of proceedings
under Section 300 and that the proceedings could result in the
termination of parental rights and adoption of the child. Judicial
Council form Paternity-Waiver of Rights (JV-505) shall be included
with the notice. Nothing in this section shall preclude a court from
terminating a father's parental rights even if an action has been
filed under Section 7630 or 7631 of the Family Code.
(c) The court may determine that the failure of an alleged father
to return the certified mail receipt is not good cause to continue a
hearing pursuant to Section 355, 358, 360, 366.21, or 366.22.
(d) If a man appears in the dependency action and files an action
under Section 7630 or 7631 of the Family Code, the court shall
determine if he is the father.
(e) After a petition has been filed to declare a child a dependent
of the court, and until the time that the petition is dismissed,
dependency is terminated, or parental rights are terminated pursuant
to Section 366.26 or proceedings are commenced under Part 4
(commencing with Section 7800) of Division 12 of the Family Code, the
juvenile court which has jurisdiction of the dependency action shall
have exclusive jurisdiction to hear an action filed under Section
7630 or 7631 of the Family Code.
(f) After any inquiry, proceeding, or determination made pursuant
to this section, the juvenile court shall note its findings in the
minutes of the court.
317. (a) When it appears to the court that a parent or guardian of
the child desires counsel but is presently financially unable to
afford and cannot for that reason employ counsel, the court may
appoint counsel as provided in this section.
(b) When it appears to the court that a parent or guardian of the
child is presently financially unable to afford and cannot for that
reason employ counsel, and the child has been placed in out-of-home
care, or the petitioning agency is recommending that the child be
placed in out-of-home care, the court shall appoint counsel, unless
the court finds that the parent or guardian has made a knowing and
intelligent waiver of counsel as provided in this section.
(c) Where a child is not represented by counsel, the court shall
appoint counsel for the child unless the court finds that the child
would not benefit from the appointment of counsel. The court shall
state on the record its reasons for that finding. A primary
responsibility of any counsel appointed to represent a child pursuant
to this section shall be to advocate for the protection, safety, and
physical and emotional well-being of the child. Counsel for the
child may be a district attorney, public defender, or other member of
the bar, provided that the counsel does not represent another party
or county agency whose interests conflict with the child's. The fact
that the district attorney represents the child in a proceeding
pursuant to Section 300 as well as conducts a criminal investigation
or files a criminal complaint or information arising from the same or
reasonably related set of facts as the proceeding pursuant to
Section 300 is not in and of itself a conflict of interest. The
court may fix the compensation for the services of appointed counsel.
The appointed counsel shall have a caseload and training that
assures adequate representation of the child. The Judicial Council
shall promulgate rules of court that establish caseload standards,
training requirements, and guidelines for appointed counsel for
children and shall adopt rules as required by Section 326.5 no later
than July 1, 2001.
(d) The counsel appointed by the court shall represent the parent,
guardian, or child at the detention hearing and at all subsequent
proceedings before the juvenile court. Counsel shall continue to
represent the parent or child unless relieved by the court upon the
substitution of other counsel or for cause. The representation shall
include representing the parent or the child in termination
proceedings and in those proceedings relating to the institution or
setting aside of a legal guardianship.
(e) The counsel for the child shall be charged in general with the
representation of the child's interests. To that end, the counsel
shall make or cause to have made any further investigations that he
or she deems in good faith to be reasonably necessary to ascertain
the facts, including the interviewing of witnesses, and he or she
shall examine and cross-examine witnesses in both the adjudicatory
and dispositional hearings. He or she may also introduce and examine
his or her own witnesses, make recommendations to the court
concerning the child's welfare, and participate further in the
proceedings to the degree necessary to adequately represent the
child. In any case in which the child is four years of age or older,
counsel shall interview the child to determine the child's wishes
and to assess the child's well-being, and shall advise the court of
the child's wishes. Counsel for the child shall not advocate for the
return of the child if, to the best of his or her knowledge, that
return conflicts with the protection and safety of the child. In
addition counsel shall investigate the interests of the child beyond
the scope of the juvenile proceeding and report to the court other
interests of the child that may need to be protected by the
institution of other administrative or judicial proceedings. The
attorney representing a child in a dependency proceeding is not
required to assume the responsibilities of a social worker and is not
expected to provide nonlegal services to the child. The court shall
take whatever appropriate action is necessary to fully protect the
interests of the child.
(f) Either the child or the counsel for the child, with the
informed consent of the child if the child is found by the court to
be of sufficient age and maturity to so consent, may invoke the
psychotherapist-client privilege, physician-patient privilege, and
clergyman-penitent privilege; and if the child invokes the privilege,
counsel may not waive it, but if counsel invokes the privilege, the
child may waive it. Counsel shall be holder of these privileges if
the child is found by the court not to be of sufficient age and
maturity to so consent. For the sole purpose of fulfilling his or
her obligation to provide legal representation of the child, counsel
for a child shall have access to all records with regard to the child
maintained by a health care facility, as defined in Section 1545 of
the Penal Code, health care providers, as defined in Section 6146 of
the Business and Professions Code, a physician and surgeon or other
health practitioner as defined in Section 11165.8 of the Penal Code
or a child care custodian, as defined in Section 11165.7 of the Penal
Code. Notwithstanding any other law, counsel shall be given access
to all records relevant to the case which are maintained by state or
local public agencies. All information requested from a child
protective agency regarding a child who is in protective custody, or
from a child's guardian ad litem, shall be provided to the child's
counsel within 30 days of the request.
(g) In a county of the third class, if counsel is to be provided
to a child at county expense other than by counsel for the agency,
the court shall first utilize the services of the public defender
prior to appointing private counsel, to provide legal counsel.
Nothing in this subdivision shall be construed to require the
appointment of the public defender in any case in which the public
defender has a conflict of interest. In the interest of justice, a
court may depart from that portion of the procedure requiring
appointment of the public defender after making a finding of good
cause and stating the reasons therefor on the record.
(h) In a county of the third class, if counsel is to be appointed
for a parent or guardian at county expense, the court shall first
utilize the services of the alternate public defender, prior to
appointing private counsel, to provide legal counsel. Nothing in
this subdivision shall be construed to require the appointment of the
alternate public defender in any case in which the public defender
has a conflict of interest. In the interest of justice, a court may
depart from that portion of the procedure requiring appointment of
the alternate public defender after making a finding of good cause
and stating the reasons therefor on the record.
317.5. (a) All parties who are represented by counsel at dependency
proceedings shall be entitled to competent counsel.
(b) Each minor who is the subject of a dependency proceeding is a
party to that proceeding.
317.6. (a) On or before January 1, 1996, the Judicial Council
shall, after consulting with representatives from the State Bar of
California, county counsels, district attorneys, public defenders,
county welfare directors, and children's advocacy groups, adopt rules
of court regarding the appointment of competent counsel in
dependency proceedings, including, but not limited to, the following:
(1) The screening and appointment of competent counsel.
(2) Establishing minimum standards of experience and education
necessary to qualify as competent counsel to represent a party in
dependency proceedings.
(3) Procedures for handling client complaints regarding attorney
performance, including measures to inform clients of the complaint
process.
(4) Procedures for informing the court of any interests of the
minor that may need to be protected in other proceedings.
(b) On or before July 1, 1996, each superior court shall, after
consulting with representatives from the State Bar of California and
the local offices of the county counsel, district attorney, public
defender, county welfare department, and children's advocacy groups,
adopt local rules of court regarding the conduct of dependency
proceedings that address items such as procedures and timeframes for
the presentation of contested issues and witness lists to eliminate
unnecessary delays in dependency hearings.
318. If a district attorney has represented a minor in a dependency
proceeding, that district attorney shall not appear, on behalf of
the people of the State of California, in any juvenile court hearing
which is based upon a petition that alleges that the same minor is a
person within the description of Section 602.
Records kept by the district attorney in the course of
representation of a minor described in Section 300 are confidential
and shall be held separately, and shall not be inspected by members
of the district attorney's office not directly involved in the
representation of that minor. A district attorney who represents or
who has represented a minor in a proceeding brought pursuant to
Section 300 shall not discuss the substance of that case with a
district attorney representing the people pursuant to Section 681 in
a proceeding brought pursuant to Section 602 in which that same minor
is the subject of the petition.
318.5. In a juvenile court hearing, where the parent or guardian is
represented by counsel, the county counsel or district attorney
shall, at the request of the juvenile court judge, appear and
participate in the hearing to represent the petitioner.
319. (a) At the initial petition hearing, the court shall examine
the child's parents, guardians, or other persons having relevant
knowledge and hear the relevant evidence as the child, the child's
parents or guardians, the petitioner, or their counsel desires to
present. The court may examine the child, as provided in Section
350.
(b) The social worker shall report to the court on the reasons why
the child has been removed from the parent's custody; the need, if
any, for continued detention; the available services and the referral
methods to those services that could facilitate the return of the
child to the custody of the child's parents or guardians; and whether
there are any relatives who are able and willing to take temporary
custody of the child. The court shall order the release of the child
from custody unless a prima facie showing has been made that the
child comes within Section 300, the court finds that continuance in
the parent's or guardian's home is contrary to the child's welfare,
and any of the following circumstances exist:
(1) There is a substantial danger to the physical health of the
child or the child is suffering severe emotional damage, and there
are no reasonable means by which the child's physical or emotional
health may be protected without removing the child from the parents'
or guardians' physical custody.
(2) There is substantial evidence that a parent, guardian, or
custodian of the child is likely to flee the jurisdiction of the
court.
(3) The child has left a placement in which he or she was placed
by the juvenile court.
(4) The child indicates an unwillingness to return home, if the
child has been physically or sexually abused by a person residing in
the home.
(c) If the matter is continued pursuant to Section 322 or for any
other reason, the court shall find that the continuance of the child
in the parent's or guardian's home is contrary to the child's welfare
at the initial petition hearing or order the release of the child
from custody.
(d) (1) The court shall also make a determination on the record,
referencing the social worker's report or other evidence relied upon,
as to whether reasonable efforts were made to prevent or eliminate
the need for removal of the child from his or her home, pursuant to
subdivision (b) of Section 306, and whether there are available
services that would prevent the need for further detention. Services
to be considered for purposes of making this determination are case
management, counseling, emergency shelter care, emergency in-home
caretakers, out-of-home respite care, teaching and demonstrating
homemakers, parenting training, transportation, and any other child
welfare services authorized by the State Department of Social
Services pursuant to Chapter 5 (commencing with Section 16500) of
Part 4 of Division 9. The court shall also review whether the social
worker has considered whether a referral to public assistance
services pursuant to Chapter 2 (commencing with Section 11200) and
Chapter 7 (commencing with Section 14000) of Part 3, Chapter 1
(commencing with Section 17000) of Part 5, and Chapter 10 (commencing
with Section 18900) of Part 6 of Division 9 would have eliminated
the need to take temporary custody of the child or would prevent the
need for further detention.
(2) If the child can be returned to the custody of his or her
parent or guardian through the provision of those services, the court
shall place the child with his or her parent or guardian and order
that the services shall be provided. If the child cannot be returned
to the custody of his or her parent or guardian, the court shall
determine if there is a relative who is able, approved, and willing
to care for the child.
(e) Whenever a court orders a child detained, the court shall
state the facts on which the decision is based, shall specify why the
initial removal was necessary, shall reference the social worker's
report or other evidence relied upon to make its determination
whether continuance in the home of the parent or legal guardian in
contrary to the child's welfare, shall order temporary placement and
care of the child to be vested with the county child welfare
department pending the hearing held pursuant to Section 355 or
further order of the court, and shall order services to be provided
as soon as possible to reunify the child and his or her family if
appropriate.
(f) When the child is not released from custody, the court may
order that the child shall be placed in the approved home of a
relative, in an emergency shelter or other suitable licensed place,
in a place exempt from licensure designated by the juvenile court, or
in the approved home of a nonrelative extended family member as
defined in Section 362.7 for a period not to exceed 15 judicial days.
As used in this section, "relative" means an adult who is related
to the child by blood, adoption, or affinity within the fifth degree
of kinship, including stepparents, stepsiblings, and all relatives
whose status is preceded by the words "great," "great-great," or
"grand," or the spouse of any of these persons, even if the marriage
was terminated by death or dissolution. However, only the following
relatives shall be given preferential consideration for placement of
the child: an adult who is a grandparent, aunt, uncle, or sibling of
the child.
The court shall consider the recommendations of the social worker
based on the approval of the relative's home, including the results
of a criminal records check and prior child abuse allegations, if
any, prior to ordering that the child be placed with a relative. The
court shall order the parent to disclose to the social worker the
names, residences, and any known identifying information of any
maternal or paternal relatives of the child. The social worker shall
initiate the assessment pursuant to Section 361.3 of any relative to
be considered for continuing placement.
319.1. When the court finds a minor to be a person described by
Section 300, and believes that the minor may need specialized mental
health treatment while the minor is unable to reside in his or her
natural home, the court shall notify the director of the county
mental health department in the county where the minor resides. The
county mental health department shall perform the duties required
under Section 5694.7 for all those minors.
Nothing in this section shall restrict the provisions of emergency
psychiatric services to those minors who are involved in dependency
cases and have not yet reached the point of adjudication or
disposition, nor shall it operate to restrict evaluations at an
earlier stage of the proceedings or to restrict orders removing the
minor from a detention facility for psychiatric treatment.
319.2. Notwithstanding Section 319, when a child under the age of
six years is not released from the custody of the court, the child
may be placed in a community care facility licensed as a group home
for children or in a temporary shelter care facility, as defined in
Section 1530.8 of the Health and Safety Code, only when the court
finds that placement is necessary to secure a complete and adequate
evaluation, including placement planning and transition time. The
placement period shall not exceed 60 days unless a case plan has been
developed and the need for additional time is documented in the case
plan and has been approved by the supervisor of the caseworker's
supervisor.
321. When a hearing is held under the provisions of this article
and no parent or guardian of the minor is present and no parent or
guardian has had actual notice of the hearing, a parent or guardian
of the minor may file an affidavit setting forth the facts with the
clerk of the juvenile court and the clerk shall immediately set the
matter for rehearing at a time within 24 hours, excluding Sundays and
nonjudicial days from the filing of the affidavit. Upon the
rehearing, the court shall proceed in the same manner as upon the
original hearing.
If the minor, a parent or guardian or the minor's attorney or
guardian ad litem, if either one or the other has been appointed by
the court, requests evidence of the prima facie case, a rehearing
shall be held within three judicial days to consider evidence of the
prima facie case. If the prima facie case is not established, the
minor shall be released from detention.
In lieu of a requested rehearing, the court may set the matter for
trial within 10 days.
When the court ascertains that the rehearing cannot be held within
three judicial days because of the unavailability of a witness, a
reasonable continuance may be granted for a period not to exceed five
judicial days.
322. Upon motion of the minor or a parent or guardian of such
minor, the court shall continue any hearing or rehearing held under
the provisions of this article for one day, excluding Sundays and
nonjudicial days.
323. Upon any hearing or rehearing under the provisions of this
article, the court may order such minor or any parent or guardian of
such minor who is present in court to again appear before the court,
the probation officer or the county financial evaluation officer at a
time and place specified in said order.
324. Whenever any minor is taken into temporary custody under the
provisions of this article in any county other than the county in
which the minor is alleged to be within or to come within the
jurisdiction of the juvenile court, which county is referred to
herein as the requesting county, the officer who has taken the minor
into temporary custody may notify the law enforcement agency in the
requesting county of the fact that the minor is in custody. When a
law enforcement officer, of such requesting county files a petition
pursuant to Section 332 with the clerk of the juvenile court of his
respective county and secures a warrant therefrom, he shall forward
said warrant, or a telegraphic copy thereof to the officer who has
the minor in temporary custody as soon as possible within 48 hours,
excluding Sundays and nonjudicial days, from the time said juvenile
was taken into temporary custody. Thereafter an officer from said
requesting county shall take custody of the minor within five days,
in the county in which the minor is in temporary custody, and shall
take the minor before the juvenile court judge who issued the
warrant, or before some other juvenile court of the same county
without unnecessary delay. If the minor is not brought before a
judge of the juvenile court within the period prescribed by this
section, he must be released from custody.
324.5. (a) Whenever allegations of physical or sexual abuse of a
child come to the attention of a local law enforcement agency or the
local child welfare department and the child is taken into protective
custody, the local law enforcement agency, or child welfare
department may, as soon as practically possible, consult with a
medical practitioner, who has specialized training in detecting and
treating child abuse injuries and neglect, to determine whether a
physical examination of the child is appropriate. If deemed
appropriate, the local law enforcement agency, or the child welfare
department, shall cause the child to undergo a physical examination
performed by a medical practitioner who has specialized training in
detecting and treating child abuse injuries and neglect, and,
whenever possible, shall ensure that this examination take place
within 72 hours of the time the child was taken into protective
custody. In the event the allegations are made while the child is in
custody, the physical examination shall be performed within 72 hours
of the time the allegations were made.
In the case of a petition filed pursuant to Section 319, the
department shall provide the results of the physical examination to
the court and to any counsel for the minor, and counsel for the
parent or guardian of the minor. Failure to obtain this physical
examination shall not be grounds to deny a petition under this
section.
(b) The local child welfare agency shall, whenever possible,
request that additional medical examinations to determine child abuse
injuries or neglect, be performed by the same medical practitioner
who performed the examinations described in subdivision (a). If it
is not possible to obtain additional medical examinations, the local
child welfare agency shall ensure that future medical practitioners
to whom the child has been referred for ongoing diagnosis and
treatment have specialized training in detecting and treating child
abuse injuries and neglect and have access to the child's medical
records covering the current and previous incidents of child abuse
325. A proceeding in the juvenile court to declare a child to be a
dependent child of the court is commenced by the filing with the
court, by the social worker, of a petition, in conformity with the
requirements of this article.
326.5. The Judicial Council shall adopt a rule of court effective
July 1, 2001, that complies with the requirement of the federal Child
Abuse Prevention and Treatment Act (Public Law 93-247) for the
appointment of a guardian ad litem, who may be an attorney or a
court-appointed special advocate, for a child in cases in which a
petition is filed based upon neglect or abuse of the child or in
which a prosecution is initiated under the Penal Code arising from
neglect or abuse of the child. The rule of court may include
guidelines to the courts for determining when an attorney should be
appointed rather than a court appointed special advocate, and
caseload standards for guardians ad litem.
327. Either the juvenile court in the county in which a minor
resides or in the county where the minor is found or in the county in
which the acts take place or the circumstances exist which are
alleged to bring such minor within the provisions of Section 300, is
the proper court to commence proceedings under this chapter.
328. Whenever the social worker has cause to believe that there was
or is within the county, or residing therein, a person described in
Section 300, the social worker shall immediately make any
investigation he or she deems necessary to determine whether child
welfare services should be offered to the family and whether
proceedings in the juvenile court should be commenced. If the social
worker determines that it is appropriate to offer child welfare
services to the family, the social worker shall make a referral to
these services pursuant to Chapter 5 (commencing with Section 16500)
of Part 4 of Division 9.
However, this section does not require an investigation by the
social worker with respect to a child delivered or referred to any
agency pursuant to Section 307.5.
The social worker shall interview any child four years of age or
older who is a subject of an investigation, and who is in juvenile
hall or other custodial facility, or has been removed to a foster
home, to ascertain the child's view of the home environment. If
proceedings are commenced, the social worker shall include the
substance of the interview in any written report submitted at an
adjudicatory hearing, or if no report is then received in evidence,
the social worker shall include the substance of the interview in the
social study required by Section 358.
328.3. Whenever any officer refers or delivers a minor pursuant to
Section 307.5, the agency to which the minor is referred shall
immediately make such investigation as it deems necessary to
determine what disposition of the referral or delivery should be
made. If the referral agency does not initiate a service program on
behalf of a minor referred to the agency within 20 calendar days, or
initiate a service program on behalf of a minor delivered to the
agency within 10 calendar days, that agency shall immediately notify
the referring officer of that decision in writing. The referral
agency shall retain a copy of that written notification for 30 days.
329. Whenever any person applies to the social worker to commence
proceedings in the juvenile court, the application shall be in the
form of an affidavit alleging that there was or is within the county,
or residing therein, a child within the provisions of Section 300,
and setting forth facts in support thereof. The social worker shall
immediately investigate as he or she deems necessary to determine
whether proceedings in the juvenile court should be commenced. If
the social worker does not take action under Section 330 and does not
file a petition in the juvenile court within three weeks after the
application, he or she shall endorse upon the affidavit of the
applicant his or her decision not to proceed further and his or her
reasons therefor and shall immediately notify the applicant of the
action taken or the decision rendered by him or her under this
section. The social worker shall retain the affidavit and his or her
endorsement thereon for a period of 30 days after notifying the
applicant.
331. When any person has applied to the social worker, pursuant to
Section 329, to commence juvenile court proceedings and the social
worker fails to file a petition within three weeks after the
application, the person may, within one month after making the
application, apply to the juvenile court to review the decision of
the social worker, and the court may either affirm the decision of
the social worker or order him or her to commence juvenile court
proceedings.
331.5. When any officer has referred or delivered a child to an
agency pursuant to Section 307.5, and that agency does not initiate a
service program for the child within the time periods required by
Section 328.3, the referring agency may, within 10 court days
following receipt of the notification from the referral agency, apply
to the social worker for a review of that decision.
332. A petition to commence proceedings in the juvenile court to
declare a child a ward or a dependent child of the court shall be
verified and shall contain all of the following:
(a) The name of the court to which it is addressed.
(b) The title of the proceeding.
(c) The code section and the subdivision under which the
proceedings are instituted. If it is alleged that the child is a
person described by subdivision (e) of Section 300, the petition
shall include an allegation pursuant to that section.
(d) The name, age, and address, if any, of the child upon whose
behalf the petition is brought.
(e) The names and residence addresses, if known to the petitioner,
of both parents and any guardian of the child. If there is no
parent or guardian residing within the state, or if his or her place
of residence is not known to the petitioner, the petition shall also
contain the name and residence address, if known, of any adult
relative residing within the county, or, if there is none, the adult
relative residing nearest to the location of the court. If it is
known to the petitioner that one of the parents is a victim of
domestic violence and that parent is currently living separately from
the batterer-parent, the address of the victim-parent shall remain
confidential.
(f) A concise statement of facts, separately stated, to support
the conclusion that the child upon whose behalf the petition is being
brought is a person within the definition of each of the sections
and subdivisions under which the proceedings are being instituted.
(g) The fact that the child upon whose behalf the petition is
brought is detained in custody or is not detained in custody, and if
he or she is detained in custody, the date and the precise time the
child was taken into custody.
(h) A notice to the father, mother, spouse, or other person liable
for support of the child, of all of the following: (1) Section 903
makes that person, the estate of that person, and the estate of the
child, liable for the cost of the care, support, and maintenance of
the child in any county institution or any other place in which the
child is placed, detained, or committed pursuant to an order of the
juvenile court; (2) Section 903.1 makes that person, the estate of
that person, and the estate of the child, liable for the cost to the
county of legal services rendered to the child or the parent by a
private attorney or a public defender appointed pursuant to the order
of the juvenile court; (3) Section 903.2 makes that person, the
estate of that person, and the estate of the child, liable for the
cost to the county of the supervision of the child by the social
worker pursuant to the order of the juvenile court; and (4) the
liabilities established by these sections are joint and several.
333. Any petition filed in juvenile court to commence proceedings
pursuant to this chapter that is not verified may be dismissed
without prejudice by such court.
334. Upon the filing of the petition, the clerk of the juvenile
court shall set the same for hearing within 30 days, except that in
the case of a minor detained in custody at the time of the filing of
the petition, the petition must be set for hearing within 15 judicial
days from the date of the order of the court directing such
detention.
338. In addition to the notice provided in Sections 290.1 and 290.2
the juvenile court may issue its citation directing any parent or
guardian of the person concerning whom a petition has been filed to
appear at the time and place set for any hearing or financial
evaluation under the provisions of this chapter, including a hearing
under the provisions of Section 257, and directing any person having
custody or control of the minor concerning whom the petition has been
filed to bring such minor with him or her. The notice shall in
addition state that a parent or guardian may be required to
participate in a counseling program with the minor concerning whom
the petition has been filed. Personal service of such citation shall
be made at least 24 hours before the time stated therein for that
appearance.
339. In case such citation cannot be served, or the person served
fails to obey it, or in any case in which it appears to the court
that the citation will probably be ineffective, a warrant of arrest
may issue on the order of the court either against the parent, or
guardian, or the person having the custody of the minor, or with whom
the minor is living.
340. Whenever a petition has been filed in the juvenile court
alleging that a minor comes within Section 300 and praying for a
hearing thereon, or whenever any subsequent petition has been filed
praying for a hearing in the matter of the minor and it appears to
the court that the circumstances of his or her home environment may
endanger the health, person, or welfare of the minor, or whenever a
dependent minor has run away from his or her court ordered placement,
a protective custody warrant may be issued immediately for the
minor.
340.5. (a) Whenever pursuant to Article 10 (commencing with Section
360) a social worker is assigned to provide child welfare services,
family reunification services, or other services to a dependent child
of the juvenile court, the juvenile court may, for good cause shown
and after an ex parte hearing, issue its order restraining the
parents of the dependent child from threatening the social worker, or
any member of the social worker's family, with physical harm.
(b) For purposes of this section, "good cause" means at least one
threat of physical harm to the social worker, or any member of the
social worker's family, made by the person who is to be the subject
of the restraining order, with the apparent ability to carry out the
threat.
(c) Violation of a restraining order issued pursuant to this
section shall be punishable as contempt.
341. Upon request of the social worker, district attorney, the
child, or the child's parent, guardian, or custodian, or on the court'
s own motion, the court or the clerk of the court, or an attorney,
pursuant to Section 1985 of the Code of Civil Procedure, shall issue
subpoenas requiring attendance and testimony of witnesses and
production of papers at any hearing regarding a child who is alleged
or determined by the court to be a person described by Section 300.
When a person attends a juvenile court hearing as a witness upon a
subpoena, in its discretion, the court may by an order on its
minutes, direct the county auditor to draw his or her warrant upon
the county treasurer in favor of the witness for witness fees in the
amount and manner prescribed by Section 68093 of the Government Code.
The fees are county charges.
342. In any case in which a minor has been found to be a person
described by Section 300 and the petitioner alleges new facts or
circumstances, other than those under which the original petition was
sustained, sufficient to state that the minor is a person described
in Section 300, the petitioner shall file a subsequent petition.
This section does not apply if the jurisdiction of the juvenile court
has been terminated prior to the new allegations.
All procedures and hearings required for an original petition are
applicable to a subsequent petition filed under this section
345. All cases under this chapter shall be heard at a special or
separate session of the court, and no other matter shall be heard at
such a session. No person on trial, awaiting trial, or under
accusation of crime, other than a parent, guardian, or relative of
the minor, shall be permitted to be present at any such session,
except as a witness.
Cases in which the minor is detained and the sole allegation is
that the minor is a person described in Section 300 shall be granted
precedence on the calendar of the court for the day on which the case
is set for hearing.
346. Unless requested by a parent or guardian and consented to or
requested by the minor concerning whom the petition has been filed,
the public shall not be admitted to a juvenile court hearing. The
judge or referee may nevertheless admit such persons as he deems to
have a direct and legitimate interest in the particular case or the
work of the court.
347. At any juvenile court hearing conducted by a juvenile court
judge, an official court reporter shall, and at any such hearing
conducted by a juvenile court referee, the official reporter, as
directed by the court, may take down in shorthand all the testimony
and all of the statements and remarks of the judge and all persons
appearing at the hearing; and, if directed by the judge, or requested
by the person on whose behalf the petition was brought, or by his
parent or legal guardian, or the attorneys of such persons, he must,
within such reasonable time after the hearing of the petition as the
court may designate, write out the same or such specific portions
thereof as may be requested in plain and legible longhand or by
typewriter or other printing machine and certify to the same as being
correctly reported and transcribed, and when directed by the court,
file the same with the clerk of the court. Unless otherwise directed
by the judge, the costs of writing out and transcribing all or any
portion of the reporter's shorthand notes shall be paid in advance at
the rates fixed for transcriptions in a civil action by the person
requesting the same.
348. The provisions of Chapter 8 (commencing with Section 469) of
Title 6 of Part 2 of the Code of Civil Procedure relating to variance
and amendment of pleadings in civil actions shall apply to petitions
and proceedings under this chapter, to the same extent and with the
same effect as if proceedings under this chapter were civil actions.
349. A minor who is the subject of a juvenile court hearing and any
person entitled to notice of the hearing under the provisions of
Sections 290.1 and 290.2, is entitled to be present at the hearing.
The minor and any person who is entitled to that notice has the right
to be represented at the hearing by counsel of his or her own
choice. If the minor is 10 years of age or older and he or she is
not present at the hearing, the court shall determine whether the
minor was properly notified of his or her right to attend the
hearing.
350. (a) (1) The judge of the juvenile court shall control all
proceedings during the hearings with a view to the expeditious and
effective ascertainment of the jurisdictional facts and the
ascertainment of all information relative to the present condition
and future welfare of the person upon whose behalf the petition is
brought. Except where there is a contested issue of fact or law, the
proceedings shall be conducted in an informal nonadversary
atmosphere with a view to obtaining the maximum cooperation of the
minor upon whose behalf the petition is brought and all persons
interested in his or her welfare with any provisions that the court
may make for the disposition and care of the minor.
(2) Each juvenile court is encouraged to develop a dependency
mediation program to provide a problem-solving forum for all
interested persons to develop a plan in the best interests of the
child, emphasizing family preservation and strengthening. The
Legislature finds that mediation of these matters assists the court
in resolving conflict, and helps the court to intervene in a
constructive manner in those cases where court intervention is
necessary. Notwithstanding any other provision of law, no person,
except the mediator, who is required to report suspected child abuse
pursuant to the Child Abuse and Neglect Reporting Act (Article 2.5
(commencing with Section 11164) of Chapter 2 of Title 1 of Part 4 of
the Penal Code), shall be exempted from those requirements under
Chapter 2 (commencing with Section 1115) of Division 9 of the
Evidence Code because he or she agreed to participate in a dependency
mediation program established in the juvenile court.
If a dependency mediation program has been established in a
juvenile court, and if mediation is requested by any person who the
judge or referee deems to have a direct and legitimate interest in
the particular case, or on the court's own motion, the matter may be
set for confidential mediation to develop a plan in the best
interests of the child, utilizing resources within the family first
and within the community if required.
(b) The testimony of a minor may be taken in chambers and outside
the presence of the minor's parent or parents, if the minor's parent
or parents are represented by counsel, the counsel is present and any
of the following circumstances exist:
(1) The court determines that testimony in chambers is necessary
to ensure truthful testimony.
(2) The minor is likely to be intimidated by a formal courtroom
setting.
(3) The minor is afraid to testify in front of his or her parent
or parents.
After testimony in chambers, the parent or parents of the minor
may elect to have the court reporter read back the testimony or have
the testimony summarized by counsel for the parent or parents.
The testimony of a minor also may be taken in chambers and outside
the presence of the guardian or guardians of a minor under the
circumstances specified in this subdivision.
(c) At any hearing in which the probation department bears the
burden of proof, after the presentation of evidence on behalf of the
probation department and the minor has been closed, the court, on
motion of the minor, parent, or guardian, or on its own motion, shall
order whatever action the law requires of it if the court, upon
weighing all of the evidence then before it, finds that the burden of
proof has not been met. That action includes, but is not limited
to, the dismissal of the petition and release of the minor at a
jurisdictional hearing, the return of the minor at an out-of-home
review held prior to the permanency planning hearing, or the
termination of jurisdiction at an in-home review. If the motion is
not granted, the parent or guardian may offer evidence without first
having reserved that right.
352. (a) Upon request of counsel for the parent, guardian, minor,
or petitioner, the court may continue any hearing under this chapter
beyond the time limit within which the hearing is otherwise required
to be held, provided that no continuance shall be granted that is
contrary to the interest of the minor. In considering the minor's
interests, the court shall give substantial weight to a minor's need
for prompt resolution of his or her custody status, the need to
provide children with stable environments, and the damage to a minor
of prolonged temporary placements.
Continuances shall be granted only upon a showing of good cause
and only for that period of time shown to be necessary by the
evidence presented at the hearing on the motion for the continuance.
Neither a stipulation between counsel nor the convenience of the
parties is in and of itself a good cause. Further, neither a pending
criminal prosecution nor family law matter shall be considered in
and of itself as good cause. Whenever any continuance is granted,
the facts proven which require the continuance shall be entered upon
the minutes of the court.
In order to obtain a motion for a continuance of the hearing,
written notice shall be filed at least two court days prior to the
date set for hearing, together with affidavits or declarations
detailing specific facts showing that a continuance is necessary,
unless the court for good cause entertains an oral motion for
continuance.
(b) Notwithstanding any other provision of law, if a minor has
been removed from the parents' or guardians' custody, no continuance
shall be granted that would result in the dispositional hearing, held
pursuant to Section 361, being completed longer than 60 days after
the hearing at which the minor was ordered removed or detained,
unless the court finds that there are exceptional circumstances
requiring such a continuance. The facts supporting such a
continuance shall be entered upon the minutes of the court. In no
event shall the court grant continuances that would cause the hearing
pursuant to Section 361 to be completed more than six months after
the hearing pursuant to Section 319.
(c) In any case in which the parent, guardian, or minor is
represented by counsel and no objection is made to an order
continuing any such hearing beyond the time limit within which the
hearing is otherwise required to be held, the absence of such an
objection shall be deemed a consent to the continuance. The consent
does not affect the requirements of subdivision (a).
353. At the beginning of the hearing on a petition filed pursuant
to Article 8 (commencing with Section 325) of this chapter, the
judge or clerk shall first read the petition to those present. Upon
request of any parent, guardian, or adult relative, counsel for the
minor, or the minor, if he or she is present, the judge shall explain
any term of allegation contained therein and the nature of the
hearing, its procedures, and possible consequences. The judge shall
ascertain whether the parent, guardian, or adult relative and, when
required by Section 317, the minor have been informed of their right
to be represented by counsel, and if not, the judge shall advise
those persons, if present, of the right to have counsel present and
where applicable, of the right to appointed counsel. If such a
person is unable to afford counsel and desires to be represented by
counsel, the court shall appoint counsel in accordance with Section
317. The court shall continue the hearing for not to exceed seven
days, as necessary to make an appointment of counsel, or to enable
counsel to acquaint himself or herself with the case, or to determine
whether the parent or guardian or adult relative is unable to afford
counsel at his or her own expense, and shall continue the hearing as
necessary to provide reasonable opportunity for the minor and the
parent or guardian or adult relative to prepare for the hearing.
353.1. (a) At the hearing on a petition filed pursuant to Article 8
(commencing with Section 325) of this chapter, any person adjudged a
dependent child of the juvenile court shall be informed, both orally
and in writing by the court as provided in subdivision (b), of both
of the following:
(1) His or her rights pursuant to Section 388.
(2) The procedure for bringing a petition pursuant to Section 388,
including the availability of all appropriate and necessary Judicial
Council forms.
(b) Where the dependent child has attained the age of 12 years,
the court shall directly inform the child as required by subdivision
(a) in clear language appropriate for the child's level of cognitive
development. Where the dependent child is under the age of 12 years,
the court shall inform the child as required by subdivision (a)
through the child's guardian ad litem or legal counsel.
354. Except where a minor is in custody, any hearing on a petition
filed pursuant to Article 8 (commencing with Section 325) of this
chapter may be continued by the court for not more than 10 days in
addition to any other continuance authorized in this chapter whenever
the court is satisfied that an unavailable and necessary witness
will be available within such time.
355. (a) At the jurisdictional hearing, the court shall first
consider only the question whether the minor is a person described by
Section 300. Any legally admissible evidence that is relevant to
the circumstances or acts that are alleged to bring the minor within
the jurisdiction of the juvenile court is admissible and may be
received in evidence. Proof by a preponderance of evidence must be
adduced to support a finding that the minor is a person described by
Section 300. Objections that could have been made to evidence
introduced shall be deemed to have been made by any parent or
guardian who is present at the hearing and unrepresented by counsel,
unless the court finds that the parent or guardian has made a knowing
and intelligent waiver of the right to counsel. Objections that
could have been made to evidence introduced shall be deemed to have
been made by any unrepresented child.
(b) A social study prepared by the petitioning agency, and hearsay
evidence contained in it, is admissible and constitutes competent
evidence upon which a finding of jurisdiction pursuant to Section 300
may be based, to the extent allowed by subdivisions (c) and (d).
(1) For the purposes of this section, "social study" means any
written report furnished to the juvenile court and to all parties or
their counsel by the county probation or welfare department in any
matter involving the custody, status, or welfare of a minor in a
dependency proceeding pursuant to Articles 6 (commencing with Section
300) to 12 (commencing with Section 385), inclusive, of Chapter 2 of
Division 2.
(2) The preparer of the social study shall be made available for
cross-examination upon a timely request by any party. The court may
deem the preparer available for cross-examination if it determines
that the preparer is on telephone standby and can be present in court
within a reasonable time of the request.
(3) The court may grant a reasonable continuance not to exceed 10
days upon request by any party if the social study is not provided to
the parties or their counsel within a reasonable time before the
hearing.
(c) (1) If any party to the jurisdictional hearing raises a timely
objection to the admission of specific hearsay evidence contained in
a social study, the specific hearsay evidence shall not be
sufficient by itself to support a jurisdictional finding or any
ultimate fact upon which a jurisdictional finding is based, unless
the petitioner establishes one or more of the following exceptions:
(A) The hearsay evidence would be admissible in any civil or
criminal proceeding under any statutory or decisional exception to
the prohibition against hearsay.
(B) The hearsay declarant is a minor under the age of 12 years who
is the subject of the jurisdictional hearing. However, the hearsay
statement of a minor under the age of 12 years shall not be
admissible if the objecting party establishes that the statement is
unreliable because it was the product of fraud, deceit, or undue
influence.
(C) The hearsay declarant is a peace officer as defined by Chapter
4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal
Code, a health practitioner described in paragraphs (21) to (28),
inclusive, of subdivision (a) of Section 11165.7 of the Penal Code, a
social worker licensed pursuant to Chapter 14 (commencing with
Section 4990) of Division 2 of the Business and Professions Code, or
a teacher who holds a credential pursuant to Chapter 2 (commencing
with Section 44200) of Part 24 of Division 3 of Title 2 of the
Education Code. For the purpose of this subdivision, evidence in a
declaration is admissible only to the extent that it would otherwise
be admissible under this section or if the declarant were present and
testifying in court.
(D) The hearsay declarant is available for cross-examination. For
purposes of this section, the court may deem a witness available for
cross-examination if it determines that the witness is on telephone
standby and can be present in court within a reasonable time of a
request to examine the witness.
(2) For purposes of this subdivision, an objection is timely if it
identifies with reasonable specificity the disputed hearsay evidence
and it gives the petitioner a reasonable period of time to meet the
objection prior to a contested hearing.
(d) This section shall not be construed to limit the right of any
party to the jurisdictional hearing to subpoena a witness whose
statement is contained in the social study or to introduce admissible
evidence relevant to the weight of the hearsay evidence or the
credibility of the hearsay declarant.
355.1. (a) Where the court finds, based upon competent professional
evidence, that an injury, injuries, or detrimental condition
sustained by a minor is of a nature as would ordinarily not be
sustained except as the result of the unreasonable or neglectful acts
or omissions of either parent, the guardian, or other person who has
the care or custody of the minor, that finding shall be prima facie
evidence that the minor is a person described by subdivision (a),
(b), or (d) of Section 300.
(b) Proof that either parent, the guardian, or other person who
has the care or custody of a minor who is the subject of a petition
filed under Section 300 has physically abused, neglected, or cruelly
treated another minor shall be admissible in evidence.
(c) The presumption created by subdivision (a) constitutes a
presumption affecting the burden of producing evidence.
(d) Where the court finds that either a parent, a guardian, or any
other person who resides with, or has the care or custody of, a
minor who is currently the subject of the petition filed under
Section 300 (1) has been previously convicted of sexual abuse as
defined in Section 11165.1 of the Penal Code, (2) has been previously
convicted of an act in another state that would constitute sexual
abuse as defined in Section 11165.1 of the Penal Code if committed in
this state, (3) has been found in a prior dependency hearing or
similar proceeding in the corresponding court of another state to
have committed an act of sexual abuse, or (4) is required, as the
result of a felony conviction, to register as a sex offender pursuant
to Section 290 of the Penal Code, that finding shall be prima facie
evidence in any proceeding that the subject minor is a person
described by subdivision (a), (b), (c), or (d) of Section 300 and is
at substantial risk of abuse or neglect. The prima facie evidence
constitutes a presumption affecting the burden of producing evidence.
(e) Where the court believes that a child has suffered criminal
abuse or neglect, the court may direct a representative of the child
protective agency to take action pursuant to subdivision (i) of
Section 11166 of the Penal Code.
(f) Testimony by a parent, guardian, or other person who has the
care or custody of the minor made the subject of a proceeding under
Section 300 shall not be admissible as evidence in any other action
or proceeding.
356. After hearing the evidence, the court shall make a finding,
noted in the minutes of the court, whether or not the minor is a
person described by Section 300 and the specific subdivisions of
Section 300 under which the petition is sustained. If it finds that
the minor is not such a person, it shall order that the petition be
dismissed and the minor be discharged from any detention or
restriction theretofore ordered. If the court finds that the minor
is such a person, it shall make and enter its findings and order
accordingly.
356.5. A child advocate appointed by the court to represent the
interests of a dependent child in a proceeding under this chapter
shall have the same duties and responsibilities as a guardian ad
litem and shall be trained by and function under the auspices of a
court appointed special advocate guardian ad litem program, formed
and operating under the guidelines established by the National Court
Appointed Special Advocate Association.
357. Whenever the court, before or during the hearing on the
petition, is of the opinion that the minor is mentally ill or if the
court is in doubt concerning the mental health of any such person,
the court may order that such person be held temporarily in the
psychopathic ward of the county hospital or hospital whose services
have been approved and/or contracted for by the department of health
of the county, for observation and recommendation concerning the
future care, supervision, and treatment of such person.
358. (a) After finding that a child is a person described in
Section 300, the court shall hear evidence on the question of the
proper disposition to be made of the child. Prior to making a
finding required by this section, the court may continue the hearing
on its own motion, the motion of the parent or guardian, or the
motion of the child, as follows:
(1) If the child is detained during the continuance, and the
social worker is not alleging that subdivision (b) of Section 361.5
is applicable, the continuance shall not exceed 10 judicial days.
The court may make an order for detention of the child or for the
child's release from detention, during the period of continuance, as
is appropriate.
(2) If the child is not detained during the continuance, the
continuance shall not exceed 30 days after the date of the finding
pursuant to Section 356. However, the court may, for cause, continue
the hearing for an additional 15 days.
(3) If the social worker is alleging that subdivision (b) of
Section 361.5 is applicable, the court shall continue the proceedings
for a period not to exceed 30 days. The social worker shall notify
each parent of the content of subdivision (b) of Section 361.5 and
shall inform each parent that if the court does not order
reunification a permanency planning hearing will be held, and that
his or her parental rights may be terminated within the timeframes
specified by law.
(b) Before determining the appropriate disposition, the court
shall receive in evidence the social study of the child made by the
social worker, any study or evaluation made by a child advocate
appointed by the court, and other relevant and material evidence as
may be offered, including, but not limited to, the willingness of the
caregiver to provide legal permanency for the child if reunification
is unsuccessful. In any judgment and order of disposition, the
court shall specifically state that the social study made by the
social worker and the study or evaluation made by the child advocate
appointed by the court, if there be any, has been read and considered
by the court in arriving at its judgment and order of disposition.
Any social study or report submitted to the court by the social
worker shall include the individual child's case plan developed
pursuant to Section 16501.1.
(c) If the court finds that a child is described by subdivision
(h) of Section 300 or that subdivision (b) of Section 361.5 may be
applicable, the court shall conduct the dispositional proceeding
pursuant to subdivision (c) of Section 361.5.
358.1. Each social study or evaluation made by a social worker or
child advocate appointed by the court, required to be received in
evidence pursuant to Section 358, shall include, but not be limited
to, a factual discussion of each of the following subjects:
(a) Whether the county welfare department or social worker has
considered 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 these
services to qualified parents if appropriate under the circumstances.
(b) What plan, if any, for return of the child to his or her
parents and for achieving legal permanence for the child if efforts
to reunify fail, is recommended to the court by the county welfare
department or probation officer.
(c) Whether the best interests of the child will be served by
granting reasonable visitation rights with the child to his or her
grandparents, in order to maintain and strengthen the child's family
relationships.
(d) (1) Whether the child has 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, the frequency and
nature of the visits between 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 interest.
(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 study or evaluation makes that
recommendation, it shall identify whether there is a responsible
adult available to make educational decisions for the child pursuant
to Section 361.
(f) Whether the 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.
(g) Whether the parent has been advised of his or her option to
participate in adoption planning, including the option to enter into
a postadoption contact agreement as described in Section 8714.7 of
the Family Code, and to voluntarily relinquish the child for adoption
if an adoption agency is willing to accept the relinquishment.
(h) The appropriateness of any relative placement pursuant to
Section 361.3. However, this consideration may not be cause for
continuance of the dispositional hearing.
(i) Whether the caregiver desires, and is willing, to provide
legal permanency for the child if reunification is unsuccessful.
359. Whenever a minor who appears to be a danger to himself or
others as a result of the use of narcotics (as defined in Section
11001 of the Health and Safety Code), or a restricted dangerous drug
(as defined in Section 11901 of the Health and Safety Code), is
brought before any judge of the juvenile court, the judge may
continue the hearing and proceed pursuant to this section. The court
may order the minor taken to a facility designated by the county and
approved by the State Department of Mental Health as a facility for
72-hour treatment and evaluation. Thereupon the provisions of
Section 11922 of the Health and Safety Code shall apply, except that
the professional person in charge of the facility shall make a
written report to the court concerning the results of the evaluation
of the minor.
If the professional person in charge of the facility for 72-hour
evaluation and treatment reports to the juvenile court that the minor
is not a danger to himself or others as a result of the use of
narcotics or restricted dangerous drugs or that the minor does not
require 14-day intensive treatment, or if the minor has been
certified for not more than 14 days of intensive treatment and the
certification is terminated, the minor shall be released if the
juvenile court proceedings have been dismissed; referred for further
care and treatment on a voluntary basis, subject to the disposition
of the juvenile court proceedings; or returned to the juvenile court,
in which event the court shall proceed with the case pursuant to
this chapter.
Any expenditure for the evaluation or intensive treatment of a
minor under this section shall be considered an expenditure made
under Part 2 (commencing with Section 5600) of Division 5, and shall
be reimbursed by the state as are other local expenditures pursuant
to that part.
360. After receiving and considering the evidence on the proper
disposition of the case, the juvenile court may enter judgment as
follows:
(a) Notwithstanding any other provision of law, if the court finds
that the child is a person described by Section 300 and the parent
has advised the court that the parent is not interested in family
maintenance or family reunification services, it may, in addition to
or in lieu of adjudicating the child a dependent child of the court,
order a legal guardianship, appoint a legal guardian, and issue
letters of guardianship, if the court determines that a guardianship
is in the best interest of the child, provided the parent and the
child agree to the guardianship, unless the child's age or physical,
emotional, or mental condition prevents the child's meaningful
response. The court shall advise the parent and the child that no
reunification services will be provided as a result of the
establishment of a guardianship. The proceeding for the appointment
of a guardian shall be in the juvenile court.
Any application for termination of guardianship shall be filed in
juvenile court in a form as may be developed by the Judicial Council
pursuant to Section 68511 of the Government Code. Section 388 shall
apply to this order of guardianship.
No person shall be appointed a legal guardian under this section
until an assessment as specified in subdivision (g) of Section 361.5
is read and considered by the court and reflected in the minutes of
the court. The assessment shall include the following:
(1) Current search efforts for, and notification of, a
noncustodial parent in the manner provided in Section 291.
(2) A review of the amount of and nature of any contact between
the child and his or her parents since the filing of the petition.
(3) An evaluation of the child's medical, developmental,
scholastic, mental, and emotional status.
(4) A preliminary assessment of the eligibility and commitment of
any identified prospective guardian, particularly the caretaker, to
include a social history including a 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 guardianship.
(5) The relationship of the child to any identified prospective
guardian, the duration and nature of the relationship, the motivation
for seeking guardianship, and a statement from the child concerning
the guardianship, unless the child's age or physical, emotional, or
other condition precludes the child's meaningful response, and if so,
a description of the condition.
(6) An analysis of the likelihood that the child would be adopted
if parental rights were terminated.
The person responsible for preparing the assessment may be called
and examined by any party to the guardianship proceeding.
(b) If the court finds that the child is a person described by
Section 300, it may, without adjudicating the child a dependent child
of the court, order that services be provided to keep the family
together and place the child and the child's parent or guardian under
the supervision of the social worker for a time period consistent
with Section 301.
(c) If the family subsequently is unable or unwilling to cooperate
with the services being provided, the social worker may file a
petition with the juvenile court pursuant to Section 332 alleging
that a previous petition has been sustained and that disposition
pursuant to subdivision (b) has been ineffective in ameliorating the
situation requiring the child welfare services. Upon hearing the
petition, the court shall order either that the petition shall be
dismissed or that a new disposition hearing shall be held pursuant to
subdivision (d).
(d) If the court finds that the child is a person described by
Section 300, it may order and adjudge the child to be a dependent
child of the court.
360.6. (a) The Legislature finds and declares the following:
(1) There is no resource that is more vital to the continued
existence and integrity of Indian tribes than their children, and the
State of California has an interest in protecting Indian children
who are members of, or are eligible for membership in, an Indian
tribe.
(2) It is in the interest of an Indian child that the child's
membership in the child's Indian tribe and connection to the tribal
community be encouraged and protected.
(b) In all Indian child custody proceedings, as defined in the
federal Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.), the
court shall consider all of the findings contained in subdivision
(a), strive to promote the stability and security of Indian tribes
and families, comply with the federal Indian Child Welfare Act, and
seek to protect the best interest of the child.
(c) A determination by an Indian tribe that an unmarried person,
who is under the age of 18 years, is either (1) a member of an Indian
tribe or (2) eligible for membership in an Indian tribe and a
biological child of a member of an Indian tribe shall constitute a
significant political affiliation with the tribe and shall require
the application of the federal Indian Child Welfare Act to the
proceedings.
361. (a) In all cases in which a minor is adjudged a dependent
child of the court on the ground that the minor is a person described
by Section 300, the court may limit the control to be exercised over
the dependent child by any parent or guardian and shall by its order
clearly and specifically set forth all those limitations. Any
limitation on the right of the parent or guardian to make educational
decisions for the child shall be specifically addressed in the court
order. The limitations may not exceed those necessary to protect
the child. If the court specifically limits the right of the parent
or guardian to make educational decisions for the child, the court
shall at the same time appoint a responsible adult to make
educational decisions for the child until one of the following
occurs:
(1) The minor reaches 18 years of age, unless the child chooses
not to make educational decisions for himself or herself, or is
deemed by the court to be incompetent.
(2) Another responsible adult is appointed to make educational
decisions for the minor pursuant to this section.
(3) The right of the parent or guardian to make educational
decisions for the minor is fully restored.
(4) A successor guardian or conservator is appointed.
(5) The child is placed into a planned permanent living
arrangement pursuant to paragraph (3) of subdivision (g) of Section
366.21, Section 366.22, or Section 366.26, at which time the foster
parent, relative caretaker, or nonrelative extended family member as
defined in Section 362.7 has the right to represent the child in
educational matters pursuant to Section 56055 of the Education Code.
An individual who would have a conflict of interest in
representing the child may not be appointed to make educational
decisions. For purposes of this section, "an individual who would
have a conflict of interest," means a person having any interests
that might restrict or bias his or her ability to make educational
decisions, including, but not limited to, those conflicts of interest
prohibited by Section 1126 of the Government Code, and the receipt
of compensation or attorneys' fees for the provision of services
pursuant to this section. A foster parent may not be deemed to have
a conflict of interest solely because he or she receives compensation
for the provision of services pursuant to this section.
If the court is unable to appoint a responsible adult to make
educational decisions for the child and paragraphs (1) to (5),
inclusive, do not apply, and the child has either been referred to
the local educational agency for special education and related
services, or has a valid individualized education program, the court
shall refer the child to the local educational agency for appointment
of a surrogate parent pursuant to Section 7579.5 of the Government
Code.
All educational and school placement decisions shall seek to
ensure that the child is in the least restrictive educational
programs and has access to the academic resources, services, and
extracurricular and enrichment activities that are available to all
pupils. In all instances, educational and school placement decisions
shall be based on the best interests of the child.
(b) Subdivision (a) does not limit the ability of a parent to
voluntarily relinquish his or her child to the State Department of
Social Services or to a licensed county adoption agency at any time
while the child is a dependent child of the juvenile court, if the
department or agency is willing to accept the relinquishment.
(c) A dependent child may not be taken from the physical custody
of his or her parents or guardian or guardians with whom the child
resides at the time the petition was initiated, unless the juvenile
court finds clear and convincing evidence of any of the following:
(1) There is a substantial danger to the physical health, safety,
protection, or physical or emotional well-being of the minor or would
be if the minor were returned home, and there are no reasonable
means by which the minor's physical health can be protected without
removing the minor from the minor's parents' or guardians' physical
custody. The fact that a minor has been adjudicated a dependent
child of the court pursuant to subdivision (e) of Section 300 shall
constitute prima facie evidence that the minor cannot be safely left
in the custody of the parent or guardian with whom the minor resided
at the time of injury. The court shall consider, as a reasonable
means to protect the minor, the option of removing an offending
parent or guardian from the home. The court shall also consider, as
a reasonable means to protect the minor, allowing a nonoffending
parent or guardian to retain custody as long as that parent or
guardian presents a plan acceptable to the court demonstrating that
he or she will be able to protect the child from future harm.
(2) The parent or guardian of the minor is unwilling to have
physical custody of the minor, and the parent or guardian has been
notified that if the minor remains out of their physical custody for
the period specified in Section 366.26, the minor may be declared
permanently free from their custody and control.
(3) The minor is suffering severe emotional damage, as indicated
by extreme anxiety, depression, withdrawal, or untoward aggressive
behavior toward himself or herself or others, and there are no
reasonable means by which the minor's emotional health may be
protected without removing the minor from the physical custody of his
or her parent or guardian.
(4) The minor or a sibling of the minor has been sexually abused,
or is deemed to be at substantial risk of being sexually abused, by a
parent, guardian, or member of his or her household, or other person
known to his or her parent, and there are no reasonable means by
which the minor can be protected from further sexual abuse or a
substantial risk of sexual abuse without removing the minor from his
or her parent or guardian, or the minor does not wish to return to
his or her parent or guardian.
(5) The minor has been left without any provision for his or her
support, or a parent who has been incarcerated or institutionalized
cannot arrange for the care of the minor, or a relative or other
adult custodian with whom the child has been left by the parent is
unwilling or unable to provide care or support for the child and the
whereabouts of the parent is unknown and reasonable efforts to locate
him or her have been unsuccessful.
(d) The court shall make a determination as to whether reasonable
efforts were made to prevent or to eliminate the need for removal of
the minor from his or her home or, if the minor is removed for one of
the reasons stated in paragraph (5) of subdivision (c), whether it
was reasonable under the circumstances not to make any of those
efforts. The court shall state the facts on which the decision to
remove the minor is based.
(e) The court shall make all of the findings required by
subdivision (a) of Section 366 in either of the following
circumstances:
(1) The minor has been taken from the custody of his or her parent
or guardian and has been living in an out-of-home placement pursuant
to Section 319.
(2) The minor has been living in a voluntary out-of-home placement
pursuant to Section 16507.4.
361.1. (a) If a child is removed from the physical custody of a
parent or guardian on the ground that the child may come within the
jurisdiction of the juvenile court pursuant to Section 300, the child
shall be returned to the physical custody of that parent or guardian
immediately after a finding by the juvenile court that the child is
not a person described in Section 300, but, in any case, not more
than two working days following the date of that finding, unless the
parent or guardian and the agency with custody of the child agree to
a later date for the child's release. Nothing in this section shall
affect a parent or guardian's remedies when a child is not returned
immediately, as those remedies existed prior to enactment of this
section.
(b) The Judicial Council shall adopt a rule of court to ensure
proper notice to a parent or guardian regarding the circumstances and
the timeframe in which a child is required to be released from
custody pursuant to this section.
361.2. (a) When a court orders removal of a child pursuant to
Section 361, the court shall first determine whether there is a
parent of the child, with whom the child was not residing at the time
that the events or conditions arose that brought the child within
the provisions of Section 300, who desires to assume custody of the
child. If that parent requests custody, the court shall place the
child with the parent unless it finds that placement with that parent
would be detrimental to the safety, protection, or physical or
emotional well-being of the child.
(b) If the court places the child with that parent it may do
either of the following:
(1) Order that the parent become legal and physical custodian of
the child. The court may also provide reasonable visitation by the
noncustodial parent. The court shall then terminate its jurisdiction
over the child. The custody order shall continue unless modified by
a subsequent order of the superior court. The order of the juvenile
court shall be filed in any domestic relation proceeding between the
parents.
(2) Order that the parent assume custody subject to the
supervision of the juvenile court. In that case the court may order
that reunification services be provided to the parent or guardian
from whom the child is being removed, or the court may order that
services be provided solely to the parent who is assuming physical
custody in order to allow that parent to retain later custody without
court supervision, or that services be provided to both parents, in
which case the court shall determine, at review hearings held
pursuant to Section 366, which parent, if either, shall have custody
of the child.
(c) The court shall make a finding either in writing or on the
record of the basis for its determination under subdivisions (a) and
(b).
(d) Part 6 (commencing with Section 7950) of Division 12 of the
Family Code shall apply to the placement of a child pursuant to
paragraphs (1) and (2) of subdivision (e).
(e) When the court orders removal pursuant to Section 361, the
court shall order the care, custody, control, and conduct of the
child to be under the supervision of the social worker who may place
the child in any of the following:
(1) The home of a noncustodial parent as described in subdivision
(a).
(2) The approved home of a relative.
(3) The approved home of a nonrelative extended family member as
defined in Section 362.7.
(4) A foster home in which the child has been placed before an
interruption in foster care, if that placement is in the best
interest of the child and space is available.
(5) A suitable licensed community care facility.
(6) With a foster family agency to be placed in a suitable
licensed foster family home or certified family home which has been
certified by the agency as meeting licensing standards.
(7) A home or facility in accordance with the federal Indian Child
Welfare Act.
(8) A child under the age of six years may be placed in a
community care facility licensed as a group home for children, or a
temporary shelter care facility as defined in Section 1530.8 of the
Health and Safety Code, only under any of the following
circumstances:
(A) When a case plan indicates that placement is for purposes of
providing specialized treatment to the child, the case plan specifies
the need for, nature of, and anticipated duration of this treatment,
and the facility meets the applicable regulations adopted under
Section 1530.8 of the Health and Safety Code and standards developed
pursuant to Section 11467.1. The specialized treatment period shall
not exceed 120 days, unless additional time is needed pursuant to the
case plan as documented by the caseworker and approved by the
caseworker's supervisor.
(B) When a case plan indicates that placement is for purposes of
providing family reunification services. In addition, the facility
offers family reunification services that meet the needs of the
individual child and his or her family, permits parents to have
reasonable access to their children 24 hours a day, encourages
extensive parental involvement in meeting the daily needs of their
children, and employs staff trained to provide family reunification
services. In addition, one of the following conditions exists:
(i) The child's parent is also a ward of the court and resides in
the facility.
(ii) The child's parent is participating in a treatment program
affiliated with the facility and the child's placement in the
facility facilitates the coordination and provision of reunification
services.
(iii) Placement in the facility is the only alternative that
permits the parent to have daily 24-hour access to the child in
accordance with the case plan, to participate fully in meeting all of
the daily needs of the child, including feeding and personal
hygiene, and to have access to necessary reunification services.
(f) (1) If the child is taken from the physical custody of the
child's parent or guardian and unless the child is placed with
relatives, the child shall be placed in foster care in the county of
residence of the child's parent or guardian in order to facilitate
reunification of the family.
(2) In the event that there are no appropriate placements
available in the parent's or guardian's county of residence, a
placement may be made in an appropriate place in another county,
preferably a county located adjacent to the parent's or guardian's
community of residence.
(3) Nothing in this section shall be interpreted as requiring
multiple disruptions of the child's placement corresponding to
frequent changes of residence by the parent or guardian. In
determining whether the child should be moved, the social worker
shall take into consideration the potential harmful effects of
disrupting the placement of the child and the parent's or guardian's
reason for the move.
(4) When it has been determined that it is necessary for a child
to be placed in a county other than the child's parent's or guardian'
s county of residence, the specific reason the out-of-county
placement is necessary shall be documented in the child's case plan.
If the reason the out-of-county placement is necessary is the lack
of resources in the sending county to meet the specific needs of the
child, those specific resource needs shall be documented in the case
plan.
(5) When it has been determined that a child is to be placed
out-of-county either in a group home or with a foster family agency
for subsequent placement in a certified foster family home, and the
sending county is to maintain responsibility for supervision and
visitation of the child, the sending county shall develop a plan of
supervision and visitation that specifies the supervision and
visitation activities to be performed and specifies that the sending
county is responsible for performing those activities. In addition
to the plan of supervision and visitation, the sending county shall
document information regarding any known or suspected dangerous
behavior of the child that indicates the child may pose a safety
concern in the receiving county. Upon implementation of the Child
Welfare Services Case Management System, the plan of supervision and
visitation, as well as information regarding any known or suspected
dangerous behavior of the child, shall be made available to the
receiving county upon placement of the child in the receiving county.
If placement occurs on a weekend or holiday, the information shall
be made available to the receiving county on or before the end of the
next business day.
(6) When it has been determined that a child is to be placed
out-of-county and the sending county plans that the receiving county
shall be responsible for the supervision and visitation of the child,
the sending county shall develop a formal agreement between the
sending and receiving counties. The formal agreement shall specify
the supervision and visitation to be provided the child, and shall
specify that the receiving county is responsible for providing the
supervision and visitation. The formal agreement shall be approved
and signed by the sending and receiving counties prior to placement
of the child in the receiving county. In addition, upon completion
of the case plan, the sending county shall provide a copy of the
completed case plan to the receiving county. The case plan shall
include information regarding any known or suspected dangerous
behavior of the child that indicates the child may pose a safety
concern to the receiving county.
(g) Whenever the social worker must change the placement of the
child and is unable to find a suitable placement within the county
and must place the child outside the county, the placement shall not
be made until he or she has served written notice on the parent or
guardian at least 14 days prior to the placement, unless the child's
health or well-being is endangered by delaying the action or would be
endangered if prior notice were given. The notice shall state the
reasons which require placement outside the county. The parent or
guardian may object to the placement not later than seven days after
receipt of the notice and, upon objection, the court shall hold a
hearing not later than five days after the objection and prior to the
placement. The court shall order out-of-county placement if it
finds that the child's particular needs require placement outside the
county.
(h) Where the court has ordered removal of the child from the
physical custody of his or her parents pursuant to Section 361, the
court shall consider whether the family ties and best interest of the
child will be served by granting visitation rights to the child's
grandparents. The court shall clearly specify those rights to the
social worker.
(i) Where the court has ordered removal of the child from the
physical custody of his or her parents pursuant to Section 361, the
court shall consider whether there are any siblings under the court's
jurisdiction, the nature of the relationship between the child and
his or her siblings, the appropriateness of developing or maintaining
the sibling relationships pursuant to Section 16002, and the impact
of the sibling relationships on the child's placement and planning
for legal permanence.
361.21. (a) The court shall not order the placement of a minor in
an out-of-state group home, unless the court finds, in its order of
placement, that all of the following conditions have been met:
(1) The out-of-state group home is licensed or certified for the
placement of minors by an agency of the state in which the minor will
be placed.
(2) The out-of-state group home meets the requirements of Section
7911.1 of the Family Code.
(3) In-state facilities or programs have been determined to be
unavailable or inadequate to meet the needs of the minor.
(b) At least every six months, the court shall review each
placement made pursuant to subdivision (a) in order to determine
compliance with that subdivision.
(c) A county shall not be entitled to receive or expend any public
funds for the placement of a minor in an out-of-state group home
unless the requirements of subdivisions (a) and (b) are met.
361.3. (a) In any case in which a child is removed from the
physical custody of his or her parents pursuant to Section 361,
preferential consideration shall be given to a request by a relative
of the child for placement of the child with the relative. In
determining whether placement with a relative is appropriate, the
county social worker and court shall consider, but shall not be
limited to, consideration of all the following factors:
(1) The best interest of the child, including special physical,
psychological, educational, medical, or emotional needs.
(2) The wishes of the parent, the relative, and child, if
appropriate.
(3) The provisions of Part 6 (commencing with Section 7950) of
Division 12 of the Family Code regarding relative placement.
(4) Placement of siblings and half-siblings in the same home, if
that placement is found to be in the best interest of each of the
children as provided in Section 16002.
(5) The good moral character of the relative and any other adult
living in the home, including whether any individual residing in the
home has a prior history of violent criminal acts or has been
responsible for acts of child abuse or neglect.
(6) The nature and duration of the relationship between the child
and the relative, and the relative's desire to care for, and to
provide legal permanency for, the child if reunification is
unsuccessful.
(7) The ability of the relative to do the following:
(A) Provide a safe, secure, and stable environment for the child.
(B) Exercise proper and effective care and control of the child.
(C) Provide a home and the necessities of life for the child.
(D) Protect the child from his or her parents.
(E) Facilitate court-ordered reunification efforts with the
parents.
(F) Facilitate visitation with the child's other relatives.
(G) Facilitate implementation of all elements of the case plan.
(H) Provide legal permanence for the child if reunification fails.
However, any finding made with respect to the factor considered
pursuant to this subparagraph and pursuant to subparagraph (G) shall
not be the sole basis for precluding preferential placement with a
relative.
(I) Arrange for appropriate and safe child care, as necessary.
(8) The safety of the relative's home. For a relative to be
considered appropriate to receive placement of a child under this
section, the relative's home shall first be approved pursuant to the
process and standards described in subdivision (d) of Section 309.
In this regard, the Legislature declares that a physical
disability, such as blindness or deafness, is no bar to the raising
of children, and a county social worker's determination as to the
ability of a disabled relative to exercise care and control should
center upon whether the relative's disability prevents him or her
from exercising care and control. The court shall order the parent
to disclose to the county social worker the names, residences, and
any other known identifying information of any maternal or paternal
relatives of the child. This inquiry shall not be construed,
however, to guarantee that the child will be placed with any person
so identified. The county social worker shall initially contact the
relatives given preferential consideration for placement to determine
if they desire the child to be placed with them. Those desiring
placement shall be assessed according to the factors enumerated in
this subdivision. The county social worker shall document these
efforts in the social study prepared pursuant to Section 358.1. The
court shall authorize the county social worker, while assessing these
relatives for the possibility of placement, to disclose to the
relative, as appropriate, the fact that the child is in custody, the
alleged reasons for the custody, and the projected likely date for
the child's return home or placement for adoption or legal
guardianship. However, this investigation shall not be construed as
good cause for continuance of the dispositional hearing conducted
pursuant to Section 358.
(b) In any case in which more than one appropriate relative
requests preferential consideration pursuant to this section, each
relative shall be considered under the factors enumerated in
subdivision (a).
(c) For purposes of this section:
(1) "Preferential consideration" means that the relative seeking
placement shall be the first placement to be considered and
investigated.
(2) "Relative" means an adult who is related to the child by
blood, adoption, or affinity within the fifth degree of kinship,
including stepparents, stepsiblings, and all relatives whose status
is preceded by the words "great," "great-great" or "grand" or the
spouse of any of these persons even if the marriage was terminated by
death or dissolution. However, only the following relatives shall
be given preferential consideration for the placement of the child:
an adult who is a grandparent, aunt, uncle, or sibling.
(d) Subsequent to the hearing conducted pursuant to Section 358,
whenever a new placement of the child must be made, consideration for
placement shall again be given as described in this section to
relatives who have not been found to be unsuitable and who will
fulfill the child's reunification or permanent plan requirements. In
addition to the factors described in subdivision (a), the county
social worker shall consider whether the relative has established and
maintained a relationship with the child.
(e) If the court does not place the child with a relative who has
been considered for placement pursuant to this section, the court
shall state for the record the reasons placement with that relative
was denied.
361.4. (a) Prior to placing a child in the home of a relative, or
the home of any prospective guardian or other person who is not a
licensed or certified foster parent, the county social worker shall
visit the home to ascertain the appropriateness of the placement.
(b) Whenever a child may be placed in the home of a relative, or
the home of any prospective guardian or other person who is not a
licensed or certified foster parent, the court or county social
worker placing the child shall cause a state and federal level
criminal records check to be conducted by an appropriate governmental
agency through the California Law Enforcement Telecommunications
System pursuant to Section 16504.5. The criminal records check shall
be conducted with regard to all persons over the age of 18 years
living in the home, and on any other person over the age of 18 years,
other than professionals providing professional services to the
child, known to the placing entity who may have significant contact
with the child, including any person who has a familial or intimate
relationship with any person living in the home. A criminal records
check may be conducted pursuant to this section on any person over
the age of 14 years living in the home who the county social worker
believes may have a criminal record. Within five judicial days
following the criminal records check conducted through the California
Law Enforcement Telecommunications System, the social worker shall
ensure that a fingerprint clearance check of the relative and any
other person whose criminal record was obtained pursuant to this
subdivision is initiated through the Department of Justice to ensure
the accuracy of the criminal records check conducted through the
California Law Enforcement Telecommunications System and shall review
the results of any criminal records check to assess the safety of
the home. The Department of Justice shall forward fingerprint
requests for federal level criminal history information to the
Federal Bureau of Investigation pursuant to this section.
(c) Whenever a child may be placed in the home of a relative, or a
prospective guardian or other person who is not a licensed or
certified foster parent, the county social worker shall cause a check
of the Child Abuse Index pursuant to subdivision (a) of Section
11170 of the Penal Code to be requested from the Department of
Justice. The Child Abuse Index check shall be conducted on all
persons over the age of 18 years living in the home.
(d) (1) If the fingerprint clearance check indicates that the
person has no criminal record, the county social worker and court may
consider the home of the relative, prospective guardian, or other
child who is not a licensed or certified foster parent for placement
of a child.
(2) If the fingerprint clearance check indicates that the person
has been convicted of a crime that would preclude licensure under
Section 1522 of the Health and Safety Code, the child shall not be
placed in the home, unless a criminal records exemption has been
granted by the county, based on substantial and convincing evidence
to support a reasonable belief that the person with the criminal
conviction is of such good character as to justify the placement and
not present a risk of harm to the child, pursuant to paragraph (3) of
this subdivision.
(3) (A) A county may issue a criminal records exemption only if
that county has been granted permission by the Director of Social
Services to issue criminal records exemptions. The county may file a
request with the Director of Social Services seeking permission for
the county to establish a procedure to evaluate and grant appropriate
individual criminal records exemptions for persons described in
subdivision (b). The director shall grant or deny the county's
request within 14 days of receipt. The county shall evaluate
individual criminal records in accordance with the standards and
limitations set forth in paragraph (1) of subdivision (g) of Section
1522 of the Health and Safety Code, and in no event shall the county
place a child in the home of a person who is ineligible for an
exemption under that provision.
(B) The department shall monitor county implementation of the
authority to grant an exemption under this paragraph to ensure that
the county evaluates individual criminal records and allows or
disallows placements according to the standards set forth in
paragraph (1) of subdivision (g) of Section 1522 of the Health and
Safety Code.
(4) The department shall conduct an evaluation of the
implementation of paragraph (3) through random sampling of county
exemption decisions.
(5) The State Department of Social Services shall not evaluate or
grant criminal record exemption requests for persons described in
subdivision (b), unless the exemption request is made by an Indian
tribe pursuant to subdivision (f).
(6) If a county has not requested, or has not been granted,
permission by the State Department of Social Services to establish a
procedure to evaluate and grant criminal records exemptions, the
county may not place a child into the home of a person described in
subdivision (b) if any person residing in the home has been convicted
of a crime other than a minor traffic violation, except as provided
in subdivision (f).
(e) Nothing in this section shall preclude a county from
conducting a criminal background check that the county is otherwise
authorized to conduct using fingerprints.
(f) Upon request from an Indian tribe, the State Department of
Social Services shall evaluate an exemption request, if needed, to
allow placement into an Indian home that the tribe has designated for
placement under the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et
seq.) that would otherwise be barred under this section. However,
if the county with jurisdiction over the child that is the subject of
the tribe's request has established an approved procedure pursuant
to paragraph (3) of subdivision (d), the tribe may request that the
county evaluate the exemption request. Once a tribe has elected to
have the exemption request reviewed by either the State Department of
Social Services or the county, the exemption decision may only be
made by that entity. Nothing in this subdivision limits the duty of
a county social worker to evaluate the home for placement or to
gather information needed to evaluate an exemption request.
(g) This section shall remain in effect only until January 1,
2005, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2005, deletes or extends
that date.
361.4. (a) Prior to placing a child in the home of a relative, or
the home of any prospective guardian or other person who is not a
licensed or certified foster parent, the county social worker shall
visit the home to ascertain the appropriateness of the placement.
(b) Whenever a child may be placed in the home of a relative, or
the home of any prospective guardian or other person who is not a
licensed or certified foster parent, the court or county social
worker placing the child shall cause a state and federal level
criminal records check to be conducted by an appropriate governmental
agency through the California Law Enforcement Telecommunications
System pursuant to Section 16504.5. The criminal records check shall
be conducted with regard to all persons over the age of 18 years
living in the home, and on any other person over the age of 18 years,
other than professionals providing professional services to the
child, known to the placing entity who may have significant contact
with the child, including any person who has a familial or intimate
relationship with any person living in the home. A criminal records
check may be conducted pursuant to this section on any person over
the age of 14 years living in the home who the county social worker
believes may have a criminal record. Within five judicial days
following the criminal records check conducted through the California
Law Enforcement Telecommunications System, the social worker shall
ensure that a fingerprint clearance check of the relative and any
other person whose criminal record was obtained pursuant to this
subdivision is initiated through the Department of Justice to ensure
the accuracy of the criminal records check conducted through the
California Law Enforcement Telecommunications System and shall review
the results of any criminal records check to assess the safety of
the home. The Department of Justice shall forward fingerprint
requests for federal level criminal history information to the
Federal Bureau of Investigation pursuant to this section.
(c) Whenever a child may be placed in the home of a relative, or a
prospective guardian or other person who is not a licensed or
certified foster parent, the county social worker shall cause a check
of the Child Abuse Index pursuant to subdivision (a) of Section
11170 of the Penal Code to be requested from the Department of
Justice. The Child Abuse Index check shall be conducted on all
persons over the age of 18 years living in the home.
(d) (1) If the fingerprint clearance check indicates that the
person has no criminal record, the county social worker and court may
consider the home of the relative, prospective guardian, or other
child who is not a licensed or certified foster parent for placement
of a child.
(2) If the fingerprint clearance check indicates that the person
has been convicted of a crime that would preclude licensure under
Section 1522 of the Health and Safety Code, the child may not be
placed in the home.
(e) Nothing in this section shall preclude a county from
conducting a criminal background check that the county is otherwise
authorized to conduct using fingerprints.
(f) This section shall become operative on January 1, 2005.
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, 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. Child welfare services, when provided, shall be provided as
follows:
(1) 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 not exceed a period of 12
months from the date the child entered foster care, except as
otherwise provided in paragraph (3).
(2) For a child who, on the date of initial removal from the
physical custody of his or her parent or guardian, was under the age
of three years, court-ordered services may not exceed a period of six
months from the date the child entered foster care.
(3) 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 the age of three years on the date of initial removal
from the physical custody of his or her parent or guardian,
court-ordered services to some or all of the sibling group may be
limited to a period of six months from the date the child entered
foster care. For the purposes of this paragraph, "a sibling group"
shall mean two or more children who are related to each other as
siblings.
For purposes of this section, "sibling" means a person related to
the child by blood, adoption, or affinity through a common legal or
biological parent.
Regardless of the age of the child, a child shall be deemed to
have entered foster care on the earlier of the date of the
jurisdictional hearing held pursuant to Section 356 or the date that
is 60 days after the date on which the child was initially removed
from the physical custody of his or her parent or guardian.
Notwithstanding paragraphs (1), (2), and (3), 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. 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.
Physical custody of the child by the parents or guardians during the
applicable time period under paragraph (1), (2), or (3) may not serve
to interrupt the running of the 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 the age of three years 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
paragraph (3), 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 paragraph (3).
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 are unknown. A
finding pursuant to this paragraph shall be supported by an
affidavit or by proof that a reasonably diligent search has failed to
locate the parent or guardian. The posting or publication of
notices is not required in that search.
(2) That the parent or guardian is suffering from a mental
disability that is described in Chapter 2 (commencing with Section
7820) of Part 4 of Division 12 of the Family Code and that renders
him or her incapable of utilizing those services.
(3) That the child or a sibling of the child has been previously
adjudicated a dependent pursuant to any subdivision of Section 300 as
a result of physical or sexual abuse, that following that
adjudication the child had been removed from the custody of his or
her parent or guardian pursuant to Section 361, that the child has
been returned to the custody of the parent or guardian from whom the
child had been taken originally, and that the child is being removed
pursuant to Section 361, due to additional physical or sexual abuse.
(4) That the parent or guardian of the child has caused the death
of another child through abuse or neglect.
(5) That the child was brought within the jurisdiction of the
court under subdivision (e) of Section 300 because of the conduct of
that parent or guardian.
(6) 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 or a sibling, as
defined in this paragraph, by a parent or guardian 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 of the child, or between the
child or a 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 or 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 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 or sibling in a closed space; or any other
torturous act or omission that would be reasonably understood to
cause serious emotional damage.
As used in this paragraph, "sibling" also includes a person whose
legal, biological, or foster parent is the parent of the child.
(7) That the parent is not receiving reunification services for a
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" may not be construed as actions
taken in good faith by the parent without the intent of placing the
child in serious danger.
(10) That the court ordered termination of reunification services
for any siblings of the child because the parent or guardian failed
to reunify with the sibling after the 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 of that child from that
parent or guardian.
(11) That the parental rights of a parent over any 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 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 may 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 from his or her
placement and refused to disclose the child's or child's sibling's
whereabouts, refused to return physical custody of the child or child'
s sibling to his or her placement, or refused to return physical
custody of the child or child's sibling to the social worker.
(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 may not order reunification for a parent or guardian
described in paragraph (3), (4), (6), (7), (8), (9), (10), (11),
(12), (13), (14), or (15) 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 may 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 or guardian is incarcerated or
institutionalized, 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 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, and any other
appropriate factors. Reunification services are subject to the
applicable time limitations imposed in subdivision (a). Services may
include, but shall not be limited to, all of the following:
(A) Maintaining contact between the parent and child through
collect telephone calls.
(B) Transportation services, where appropriate.
(C) Visitation services, where appropriate.
(D) Reasonable services to extended family members or foster
parents providing care for the child if the services are not
detrimental to the child.
An incarcerated parent may be required to attend counseling,
parenting classes, or vocational training programs as part of the
service plan if these programs are available.
(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.
(3) Notwithstanding any other provision of law, if the
incarcerated parent is a woman seeking to participate in the
community treatment program operated by the Department of Corrections
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), or (15) 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 is the most appropriate plan for the child.
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) Whenever a court orders that a hearing shall be held pursuant
to Section 366.26, it shall direct the agency supervising the child
and the licensed county adoption agency, or the State Department of
Social Services when it is acting as an adoption agency in counties
that are not served by a county adoption agency, to prepare an
assessment that shall include:
(1) Current search efforts for an absent parent or parents.
(2) 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 paragraph shall include,
but not be limited to, the child's siblings, grandparents, aunts, and
uncles.
(3) An evaluation of the child's medical, developmental,
scholastic, mental, and emotional status.
(4) A preliminary assessment of the eligibility and commitment of
any identified prospective adoptive parent or 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 guardian is a relative of the minor, and
the relative was assessed for foster care placement of the minor
prior to January 1, 1998, the assessment shall also consider, but
need not be limited to, all of the factors specified in subdivision
(a) of Section 361.3. As used in this paragraph, "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.
(5) The relationship of the child to any identified prospective
adoptive parent or guardian, the duration and character of the
relationship, the motivation for seeking adoption or guardianship,
and a statement from the child concerning placement and the adoption
or guardianship, 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.
(6) An analysis of the likelihood that the child will be adopted
if parental rights are terminated.
(h) 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.
(2) The circumstances under which the abuse or harm was inflicted
on the child or the child's sibling.
(3) The severity of the emotional trauma suffered by the child or
the child's 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.
(i) 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.
(j) This section shall be repealed on January 1, 2006, unless a
later enacted statute extends or deletes that date.
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, 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. Child welfare services, when provided, shall be provided as
follows:
(1) 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 not exceed a period of 12
months from the date the child entered foster care, except as
otherwise provided in paragraph (3).
(2) For a child who, on the date of initial removal from the
physical custody of his or her parent or guardian, was under the age
of three years, court-ordered services shall not exceed a period of
six months from the date the child entered foster care.
(3) 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 the age of three years on the date of initial removal
from the physical custody of his or her parent or guardian,
court-ordered services to some or all of the sibling group may be
limited to a period of six months from the date the child entered
foster care. For the purposes of this paragraph, "a sibling group"
shall mean two or more children who are related to each other as
siblings.
For purposes of this section, "sibling" means a person related to
the child by blood, adoption, or affinity through a common legal or
biological parent.
Regardless of the age of the child, a child shall be deemed to
have entered foster care on the earlier of the date of the
jurisdictional hearing held pursuant to Section 356 or the date that
is 60 days after the date on which the child was initially removed
from the physical custody of his or her parent or guardian.
Notwithstanding paragraphs (1), (2), and (3), 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. 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.
Physical custody of the child by the parents or guardians during the
applicable time period under paragraph (1), (2), or (3) may not serve
to interrupt the running of the 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 the age of three years 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
paragraph (3), 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 paragraph (3).
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 are unknown. A
finding pursuant to this paragraph shall be supported by an
affidavit or by proof that a reasonably diligent search has failed to
locate the parent or guardian. The posting or publication of
notices is not required in that search.
(2) That the parent or guardian is suffering from a mental
disability that is described in Chapter 2 (commencing with Section
7820) of Part 4 of Division 12 of the Family Code and that renders
him or her incapable of utilizing those services.
(3) That the child or a sibling of the child has been previously
adjudicated a dependent pursuant to any subdivision of Section 300 as
a result of physical or sexual abuse, that following that
adjudication the child had been removed from the custody of his or
her parent or guardian pursuant to Section 361, that the child has
been returned to the custody of the parent or guardian from whom the
child had been taken originally, and that the child is being removed
pursuant to Section 361, due to additional physical or sexual abuse.
(4) That the parent or guardian of the child has caused the death
of another child through abuse or neglect.
(5) That the child was brought within the jurisdiction of the
court under subdivision (e) of Section 300 because of the conduct of
that parent or guardian.
(6) 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 or a 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 of the child, or between the
child or a 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 or 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 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 or sibling in a closed space; or any other
torturous act or omission that would be reasonably understood to
cause serious emotional damage.
As used in this paragraph, "sibling" also includes a person whose
legal, biological, or foster parent is the parent of the child.
(7) That the parent is not receiving reunification services for a
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. For
the purposes of this paragraph, "serious danger" means that without
the intervention of another person or agency, the child would have
sustained severe or permanent disability, injury, illness, or death.
For purposes of this paragraph, "willful abandonment" shall not be
construed as actions taken in good faith by the parent without the
intent of placing the child in serious danger.
(10) That the court ordered termination of reunification services
for any siblings of the child because the parent or guardian failed
to reunify with the sibling after the 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 of that child from that
parent or guardian.
(11) That the parental rights of a parent over any 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 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 may 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 from his or her
placement and refused to disclose the child's or child's sibling's
whereabouts, refused to return physical custody of the child or child'
s sibling to his or her placement, or refused to return physical
custody of the child or child's sibling to the social worker.
(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 may not order reunification for a parent or guardian
described in paragraph (3), (4), (6), (7), (8), (9), (10), (11),
(12), (13), (14), or (15) 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 may 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 or guardian is incarcerated or
institutionalized, 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 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, and any other
appropriate factors. Reunification services are subject to the
applicable time limitations imposed in subdivision (a). Services may
include, but shall not be limited to, all of the following:
(A) Maintaining contact between the parent and child through
collect telephone calls.
(B) Transportation services, where appropriate.
(C) Visitation services, where appropriate.
(D) Reasonable services to extended family members or foster
parents providing care for the child if the services are not
detrimental to the child.
An incarcerated parent may be required to attend counseling,
parenting classes, or vocational training programs as part of the
service plan if these programs are available.
(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.
(3) Notwithstanding any other provision of law, if the
incarcerated parent is a woman seeking to participate in the
community treatment program operated by the Department of Corrections
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), or (15) 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 is the most appropriate plan for the child.
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 may 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) Whenever a court orders that a hearing shall be held pursuant
to Section 366.26, it shall direct the agency supervising the child
and the licensed county adoption agency, or the State Department of
Social Services when it is acting as an adoption agency in counties
that are not served by a county adoption agency, to prepare an
assessment that shall include:
(1) Current search efforts for an absent parent or parents.
(2) 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 paragraph shall include,
but not be limited to, the child's siblings, grandparents, aunts, and
uncles.
(3) An evaluation of the child's medical, developmental,
scholastic, mental, and emotional status.
(4) A preliminary assessment of the eligibility and commitment of
any identified prospective adoptive parent or 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 guardian is a relative of the minor, and
the relative was assessed for foster care placement of the minor
prior to January 1, 1998, the assessment shall also consider, but
need not be limited to, all of the factors specified in subdivision
(a) of Section 361.3. As used in this paragraph, "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.
(5) The relationship of the child to any identified prospective
adoptive parent or guardian, the duration and character of the
relationship, the motivation for seeking adoption or guardianship,
and a statement from the child concerning placement and the adoption
or guardianship, 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.
(6) An analysis of the likelihood that the child will be adopted
if parental rights are terminated.
(h) 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.
(2) The circumstances under which the abuse or harm was inflicted
on the child or the child's sibling.
(3) The severity of the emotional trauma suffered by the child or
the child's 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.
(i) 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.
(j) This section shall become operative on January 1, 2006, unless
a later enacted statute extends or deletes that date.
362. (a) When a child is adjudged a dependent child of the court on
the ground that the child is a person described by Section 300, the
court may make any and all reasonable orders for the care,
supervision, custody, conduct, maintenance, and support of the child,
including medical treatment, subject to further order of the court.
To facilitate coordination and cooperation among government agencies
or private service providers, or both, the court may, after giving
notice and an opportunity to be heard, join in the juvenile court
proceedings any agency or private service provider that the court
determines has failed to meet a legal obligation to provide services
to the child. In any proceeding in which an agency or private
service provider is joined, the court shall not impose duties upon
the agency or private service provider beyond those mandated by law.
Nothing in this section shall prohibit agencies or private service
providers that have received notice of the hearing on joinder from
meeting prior to the hearing to coordinate services for the child.
The court has no authority to order services unless it has been
determined through the administrative process of an agency that has
been joined as a party, that the child is eligible for those
services. With respect to mental health assessment, treatment, and
case management services pursuant to Chapter 26.5 (commencing with
Section 7570) of Division 7 of Title 1 of the Government Code, the
court's determination shall be limited to whether the agency or
private service provider has complied with that chapter.
(b) When a child is adjudged a dependent child of the court, on
the ground that the child is a person described by Section 300 and
the court orders that a parent or guardian shall retain custody of
the child subject to the supervision of the social worker, the
parents or guardians shall be required to participate in child
welfare services or services provided by an appropriate agency
designated by the court.
(c) The juvenile court may direct any and all reasonable orders to
the parents or guardians of the child who is the subject of any
proceedings under this chapter as the court deems necessary and
proper to carry out the provisions of this section, including orders
to appear before a county financial evaluation officer. That order
may include a direction to participate in a counseling or education
program, including, but not limited to, a parent education and
parenting program operated by a community college, school district,
or other appropriate agency designated by the court. A foster parent
or relative with whom the child is placed may be directed to
participate in such a program in cases in which the court deems
participation is appropriate and in the child's best interest. The
program in which a parent or guardian is required to participate
shall be designed to eliminate those conditions that led to the court'
s finding that the child is a person described by Section 300.
(d) When a child is adjudged a dependent child of the court, the
juvenile court may direct any and all reasonable orders to the
parents or guardians of the child who is the subject of any
proceedings under this chapter, to ensure the child's regular school
attendance and to make reasonable efforts to obtain educational
services necessary to meet the specific needs of the child.
(e) "Private service provider" means any agency or individual that
receives federal, state, or local government funding or
reimbursement for providing services directly to foster children.
362.05. Every child adjudged a dependent child of the juvenile
court shall be entitled to participate in age-appropriate
extracurricular, enrichment, and social activities. No state or
local regulation or policy may prevent or create barriers to
participation in those activities. Each state and local entity shall
ensure that private agencies that provide foster care services to
dependent children have policies consistent with this section and
that those agencies promote and protect the ability of dependent
children to participate in age-appropriate extracurricular,
enrichment, and social activities. Caregivers shall use a prudent
parent standard in determining whether to give permission for a child
residing in foster care to participate in extracurricular,
enrichment, and social activities. The caretaker shall take
reasonable steps to determine the appropriateness of the activity in
consideration of the child's age, maturity, and developmental level.
362.1. (a) In order to maintain ties between the parent or guardian
and any siblings and the child, and to provide information relevant
to deciding if, and when, to return a child to the custody of his or
her parent or guardian, or to encourage or suspend sibling
interaction, any order placing a child in foster care, and ordering
reunification services, shall provide as follows:
(1) (A) Subject to subparagraph (B), for visitation between the
parent or guardian and the child. Visitation shall be as frequent as
possible, consistent with the well-being of the child.
(B) No visitation order shall jeopardize the safety of the child.
To protect the safety of the child, the court may keep the child's
address confidential. If the parent of the child has been convicted
of murder in the first degree, as defined in Section 189 of the Penal
Code, and the victim of the murder was the other parent of the
child, the court shall order visitation between the child and the
parent only if that order would be consistent with Section 3030 of
the Family Code.
(2) Pursuant to subdivision (b) of Section 16002, for visitation
between the child and any siblings, unless the court finds by clear
and convincing evidence that sibling interaction is detrimental to
either child.
(b) When reunification services are not ordered pursuant to
Section 361.5, the child's plan for legal permanency shall include
consideration of the existence of and the relationship with any
sibling pursuant to Section 16002, including their impact on
placement and visitation.
(c) As used in this section, "sibling" means a child related to
another person by blood, adoption, or affinity through a common legal
or biological parent.
362.2. It is the intent of the Legislature that if a placement
out-of-home is necessary pursuant to an individualized education
program, that this placement be as near the child's home as possible,
unless it is not in the best interest of the child. When the court
determines that it is the best interest of the child to be placed
out-of-state, the court shall read into the record that in-state
alternatives have been explored and that they cannot meet the needs
of the child, and the court shall state on the record the reasons for
the out-of-state placement.
362.3. In addition to the notice provided in Sections 297 and 332,
the juvenile court may issue its citation directing any parent,
guardian, or foster parent of the person concerning whom a petition
has been filed to appear at the time and place set for any hearing
under the provisions of this chapter, and directing any person having
custody or control of the child concerning whom the petition has
been filed to bring the child with him or her. The citation shall,
in addition, state that a parent, guardian, or foster parent may be
required to participate in a counseling or education program with the
child concerning whom the petition has been filed. Personal service
of the citation shall be made at least 24 hours before the time
stated therein for the appearance.
362.4. When the juvenile court terminates its jurisdiction over a
minor who has been adjudged a dependent child of the juvenile court
prior to the minor's attainment of the age of 18 years, and
proceedings for dissolution of marriage, for nullity of marriage, or
for legal separation, of the minor's parents, or proceedings to
establish the paternity of the minor child brought under the Uniform
Parentage Act, Part 3 (commencing with Section 7600) of Division 12
of the Family Code, are pending in the superior court of any county,
or an order has been entered with regard to the custody of that
minor, the juvenile court on its own motion, may issue a protective
order as provided for in Section 213.5 or as defined in Section 6218
of the Family Code, and an order determining the custody of, or
visitation with, the child.
Any order issued pursuant to this section shall continue until
modified or terminated by a subsequent order of the superior court.
The order of the juvenile court shall be filed in the proceeding for
nullity, dissolution, or legal separation, or in the proceeding to
establish paternity, at the time the juvenile court terminates its
jurisdiction over the minor, and shall become a part thereof.
If no action is filed or pending relating to the custody of the
minor in the superior court of any county, the juvenile court order
may be used as the sole basis for opening a file in the superior
court of the county in which the parent, who has been given custody,
resides. The court may direct the parent or the clerk of the
juvenile court to transmit the order to the clerk of the superior
court of the county in which the order is to be filed. The clerk of
the superior court shall, immediately upon receipt, open a file,
without a filing fee, and assign a case number.
The clerk of the superior court shall, upon the filing of any
juvenile court custody order, send by first-class mail a copy of the
order with the case number to the juvenile court and to the parents
at the address listed on the order.
The Judicial Council shall adopt forms for any custody or
restraining order issued under this section. These form orders shall
not be confidential.
362.6. (a) When a hearing is requested pursuant to Section 1202.05
of the Penal Code, the sentencing court shall forward a copy of the
request to the child protective services agency (CPS), or the
appropriate entity, in the county in which any related dependency
matters as to the affected child victim have been heard or to the
county in which the child victim resides. CPS, or the appropriate
entity, shall initiate a hearing to determine whether visitation
between the child victim and the incarcerated person would be in the
best interests of the child victim. If the court determines that
visitation with the incarcerated person is in the best interests of
the child victim, CPS, or the appropriate entity, shall notify the
Department of Corrections to provide for contact or visitation, or
both, as ordered by the court.
(b) The court, if visitation is allowed, may impose whatever
safeguards or restrictions it deems appropriate to protect the child
victim.
(c) The court's order shall be transmitted to all parties and to
the Department of Corrections.
(d) Any party may return to the juvenile court at any time prior
to the child victim's 18th birthday and request modification of the
court's order based on a change of circumstances. For these
purposes, the juvenile court shall retain jurisdiction over the
matter until the child victim reaches the age of 18 years.
362.7. When the home of a nonrelative extended family member is
being considered for placement of a child, the home shall be
evaluated, and approval of that home shall be granted or denied,
pursuant to the same standards set forth in the regulations for the
licensing of foster family homes which prescribe standards of safety
and sanitation for the physical plant and standards for basic
personal care, supervision, and services provided by the caregiver.
A "nonrelative extended family member" is defined as any adult
caregiver who has an established familial or mentoring relationship
with the child. The county welfare department shall verify the
existence of a relationship through interviews with the parent and
child or with one or more third parties. The parties may include
relatives of the child, teachers, medical professionals, clergy,
neighbors, and family friends.
363. If the parent or person legally responsible for the care of
any minor who is found to be a person described in Section 300
receives public assistance or care, any portion of which is
attributable to the minor, a copy of the order of the court providing
for the removal of the minor from his or her home shall be furnished
to the appropriate social services official, who shall reduce the
public assistance and care furnished the parent or other person by
the amount attributable to the minor.
364. (a) Every hearing in which an order is made placing a child
under the supervision of the juvenile court pursuant to Section 300
and in which the child is not removed from the physical custody of
his or her parent or guardian shall be continued to a specific future
date not to exceed six months after the date of the original
dispositional hearing. The continued hearing shall be placed on the
appearance calendar. The court shall advise all persons present of
the date of the future hearings, of their rights to be present, and
to be represented by counsel.
(b) At least 10 calendar days prior to the hearing, the social
worker shall file a supplemental report with the court describing the
services offered to the family and the progress made by the family
in eliminating the conditions or factors requiring court supervision.
The social worker shall also make a recommendation regarding the
necessity of continued supervision. A copy of this report shall be
furnished to all parties at least 10 calendar days prior to the
hearing.
(c) After hearing any evidence presented by the social worker, the
parent, the guardian, or the child, the court shall determine
whether continued supervision is necessary. The court shall
terminate its jurisdiction unless the social worker or his or her
department establishes by a preponderance of evidence that the
conditions still exist which would justify initial assumption of
jurisdiction under Section 300, or that those conditions are likely
to exist if supervision is withdrawn. Failure of the parent or
guardian to participate regularly in any court ordered treatment
program shall constitute prima facie evidence that the conditions
which justified initial assumption of jurisdiction still exist and
that continued supervision is necessary.
(d) If the court retains jurisdiction it shall continue the matter
to a specified date, not more than six months from the time of the
hearing, at which point the court shall again follow the procedure
specified in subdivision (c).
(e) In any case in which the court has ordered that a parent or
guardian shall retain physical custody of a child subject to
supervision by a social worker, and the social worker subsequently
receives a report of acts or circumstances which indicate that there
is reasonable cause to believe that the child is a person described
in subdivision (a), (d), or (e) of Section 300, the social worker
shall commence proceedings under this chapter. If, as a result of
the proceedings required, the court finds that the child is a person
described in subdivision (a), (d), or (e) of Section 300, the court
shall remove the child from the care, custody, and control of the
child's parent or guardian and shall commit the child to the care,
custody, and control of the social worker pursuant to Section 361.
364.05. Notwithstanding Section 364, in a county of the first
class, a copy of the report required pursuant to subdivision (b) of
Section 364 shall be provided to all parties at least 10 calendar
days prior to the hearing. This may be accomplished by mailing the
report at least 15 calendar days prior to the hearing to a party
whose address is within the State of California, or at least 20
calendar days prior to the hearing to a party whose address is
outside the State of California. The court shall grant a reasonable
continuance, not to exceed 10 calendar days, upon request by any
party or his or her counsel on the ground that the report was not
provided at least 10 calendar days prior to the hearing as required
by this section, unless the party or his or her counsel has expressly
waived the requirement that the report be provided within the 10-day
period or the court finds that the party's ability to proceed at the
hearing is not prejudiced by the lack of timely service of the
report. In making this determination, the court shall presume that a
party is prejudiced by the lack of timely service of the report, and
may find that the party is not prejudiced only by clear and
convincing evidence to the contrary.
365. The court may require the social worker or any other agency to
render any periodic reports concerning children committed to its
care, custody, and control under the provisions of Section 362 that
the court deems necessary or desirable. The court may require that
the social worker, or any other public agency organized to provide
care for needy or neglected children, shall perform the visitation
and make periodic reports to the courts concerning children committed
under those provisions that the court deems necessary or desirable.
366. (a) (1) The status of every dependent child in foster care
shall be reviewed periodically as determined by the court but no less
frequently than once every six months, as calculated from the date
of the original dispositional hearing, until the hearing described in
Section 366.26 is completed. The court shall consider the safety of
the child and shall determine all of the following:
(A) The continuing necessity for and appropriateness of the
placement.
(B) The extent of the agency's compliance with the case plan in
making reasonable efforts to return the child to a safe home and to
complete any steps necessary to finalize the permanent placement of
the child, including efforts to maintain relationships between a
child who is 10 years of age or older who is placed in a group home,
and individuals other than the child's siblings who are important to
the child, consistent with the child's best interests.
(C) Whether there should be any limitation on the right of the
parent or guardian to make educational decisions for the child. That
limitation shall be specifically addressed in the court order and
may not exceed those necessary to protect the child. Whenever the
court specifically limits the right of the parent or guardian to make
educational decisions for the child, the court shall at the same
time appoint a responsible adult to make educational decisions for
the child pursuant to Section 361.
(D) (i) Whether the child has other siblings under the court's
jurisdiction, and, if any siblings exist, all of the following:
(I) The nature of the relationship between the child and his or
her siblings.
(II) The appropriateness of developing or maintaining the sibling
relationships pursuant to Section 16002.
(III) 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.
(IV) If the siblings are not placed together, the frequency and
nature of the visits between siblings.
(V) The impact of the sibling relationships on the child's
placement and planning for legal permanence.
(VI) The continuing need to suspend sibling interaction, if
applicable, pursuant to subdivision (c) of Section 16002.
(ii) The factors the court may consider in making a determination
regarding the nature of the child's sibling relationships may
include, but are 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.
(E) The extent of progress which has been made toward alleviating
or mitigating the causes necessitating placement in foster care.
(2) The court shall project a likely date by which the child may
be returned to and safely maintained in the home or placed for
adoption, legal guardianship, or in another planned permanent living
arrangement.
(b) Subsequent to the hearing, periodic reviews of each child in
foster care shall be conducted pursuant to the requirements of
Sections 366.3 and 16503.
(c) If the child has been placed out of state, each review
described in subdivision (a) and any reviews conducted pursuant to
Sections 366.3 and 16503 shall also address whether the out-of-state
placement continues to be the most appropriate placement selection
and in the best interests of the child.
(d) A child may not be placed in an out-of-state group home, or
remain in an out-of-state group home, unless the group home is in
compliance with Section 7911.1 of the Family Code.
366.05. Notwithstanding subdivision (c) of Section 366.21, in a
county of the first class, any supplemental report filed in
connection with a status review hearing held pursuant to subdivision
(a) of Section 366 shall be provided to the parent or legal guardian
and to counsel for the child at least 10 calendar days prior to the
hearing. This may be accomplished by mailing the report at least 15
calendar days prior to the hearing to a party whose address is within
the State of California, or at least 20 calendar days prior to the
hearing to a party whose address is outside the State of California.
The court shall grant a reasonable continuance, not to exceed 10
calendar days, upon request by any party or his or her counsel on the
ground that the report was not provided at least 10 calendar days
prior to the hearing as required by this section, unless the party or
his or her counsel has expressly waived the requirement that the
report be provided within the 10-day period or the court finds that
the party's ability to proceed at the hearing is not prejudiced by
the lack of timely service of the report. In making this
determination, the court shall presume that a party is prejudiced by
the lack of timely service of the report, and may find that the party
is not prejudiced only by clear and convincing evidence to the
contrary.
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 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.
(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, the frequency and
nature of the visits between 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 who is placed
in a group home 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 who is placed in a group home to identify any
individuals other than the child's siblings who are important to the
child, consistent with the child's best interest, and may ask any
child who is younger than 10 years of age to provide that
information, as appropriate.
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 the
child and individuals who are important to the child, the progress
made, and, where relevant, the prognosis for return of the child to
the physical custody of his or her parent or legal guardian, and
shall make his or her recommendation for disposition. If the child
is a member of a sibling group described in paragraph (3) 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
and counsel for the child 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
court-appointed child advocate, and any foster parents, relative
caregivers, certified foster parents who have been approved for
adoption by the State Department of Social Services when it is acting
as an adoption agency in counties that are not served by a county
adoption agency or by a licensed county adoption agency, community
care facility, or foster family agency having the physical custody of
the child.
(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, the facility or agency shall file with the court
a report 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 licensed 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
in counties that are not served by a county adoption agency or by a
licensed county adoption agency, may file with the court a report
containing his or her recommendation for disposition. The court
shall consider the report and recommendation filed pursuant to this
subdivision prior to determining any disposition.
(e) At the review hearing held six months after the initial
dispositional hearing, 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. 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.
Whether or not the child is returned to a parent or legal
guardian, the court shall specify the factual basis for its
conclusion that the return would be detrimental or would not be
detrimental. The court also shall make appropriate findings pursuant
to subdivision (a) of Section 366; and, where relevant, shall order
any additional services reasonably believed to facilitate the return
of the child to the custody of his or her parent or legal guardian.
The court shall also inform the parent or legal guardian that if the
child cannot be returned home by the 12-month permanency hearing, a
proceeding pursuant to Section 366.26 may be instituted. This
section does not apply in a case where, pursuant to Section 361.5,
the court has ordered that reunification services shall not be
provided.
If the child was under the age of three years on the date of the
initial removal, or is a member of a sibling group described in
paragraph (3) 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 the age of three years on the date of initial removal or is a
member of a sibling group described in paragraph (3) of subdivision
(a) of Section 361.5, may be returned to his or her parent or legal
guardian within six months or that reasonable services have not been
provided, the court shall continue the case to the 12-month
permanency hearing.
For the purpose of placing and maintaining a sibling group
together in a permanent home, the court, in making its determination
to schedule a hearing pursuant to Section 366.26 for some or all
members of a sibling group, as described in paragraph (3) 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 interest of each child in the sibling group. The court
shall specify the factual basis for its finding that it is in the
best interest of each child to schedule a hearing pursuant to Section
366.26 in 120 days for some or all of the members of the sibling
group.
If the child was removed initially under subdivision (g) of
Section 300 and the court finds by clear and convincing evidence that
the whereabouts of the parent are still unknown, or the parent has
failed to contact and visit the child, the court may schedule a
hearing pursuant to Section 366.26 within 120 days. If the court
finds by clear and convincing evidence that the parent has been
convicted of a felony indicating parental unfitness, the court may
schedule a hearing pursuant to Section 366.26 within 120 days.
If the child had been placed under court supervision with a
previously noncustodial parent pursuant to Section 361.2, the court
shall determine whether supervision is still necessary. The court
may terminate supervision and transfer permanent custody to that
parent, as provided for by paragraph (1) of subdivision (b) of
Section 361.2.
In all other cases, the court shall direct that any reunification
services previously ordered shall continue to be offered to the
parent or legal guardian pursuant to the time periods set forth in
subdivision (a) of Section 361.5, provided that the court may modify
the terms and conditions of those services.
If the child is not returned to his or her parent or legal
guardian, the court shall determine whether reasonable services that
were designed to aid the parent or legal guardian in overcoming the
problems that led to the initial removal and the continued custody of
the child have been provided or offered to the parent or legal
guardian. The court shall order that those services be initiated,
continued, or terminated.
(f) The permanency hearing shall be held no later than 12 months
after the date the child entered foster care, as that date is
determined pursuant to subdivision (a) of Section 361.5. 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. 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. The court shall also determine whether reasonable
services that were designed to aid the parent or legal guardian to
overcome the problems that led to the initial removal and continued
custody of the child have been provided or offered to the parent or
legal guardian. For each youth 16 years of age and older, the court
shall also determine whether services have been made available to
assist him or her in making the transition from foster care to
independent living. The 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.
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 the return would be detrimental. The court also
shall make a finding pursuant to subdivision (a) of Section 366.
(g) If the time period in which the court-ordered services were
provided has met or exceeded the time period set forth in paragraph
(1), (2), or (3) of subdivision (a) of Section 361.5, as appropriate,
and a child is not returned to the custody of a parent or legal
guardian at the permanency hearing held pursuant to subdivision (f),
the court shall do one of the following:
(1) Continue the case for up to six months for a permanency review
hearing, provided that the hearing shall occur within 18 months of
the date the child was originally taken from the physical custody of
his or her parent or legal guardian. The court shall continue the
case only if it finds that there is a substantial probability that
the child will be returned to the physical custody of his or her
parent or legal guardian and safely maintained in the home within the
extended period of time or that reasonable services have not been
provided to the parent or legal guardian. For the purposes of this
section, in order to find a substantial probability that the child
will be returned to the physical custody of his or her parent or
legal guardian and safely maintained in the home within the extended
period of time, the court shall be required to find all of the
following:
(A) That the parent or legal guardian has consistently and
regularly contacted and visited with the child.
(B) That the parent or legal guardian has made significant
progress in resolving problems that led to the child's removal from
the home.
(C) The parent or legal guardian has demonstrated the capacity and
ability both to complete the objectives of his or her treatment plan
and to provide for the child's safety, protection, physical and
emotional well-being, and special needs.
For purposes of this subdivision, the court's decision to continue
the case based on a finding or substantial probability that the
child will be returned to the physical custody of his or her parent
or legal guardian is a compelling reason for determining that a
hearing held pursuant to Section 366.26 is not in the best interests
of the child.
The court shall inform the parent or legal guardian that if the
child cannot be returned home by the next permanency review hearing,
a proceeding pursuant to Section 366.26 may be instituted. The court
shall not order that a hearing pursuant to Section 366.26 be held
unless there is clear and convincing evidence that reasonable
services have been provided or offered to the parent or legal
guardian.
(2) 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.
(3) Order that the child remain in long-term foster care, but only
if the court finds by clear and convincing evidence, based upon the
evidence already presented to it, including a recommendation by the
State Department of Social Services when it is acting as an adoption
agency in counties that are not served by a county adoption agency or
by a licensed 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 interest of the child because the child is not a
proper subject for adoption and has no one willing to accept legal
guardianship. For purposes of this section, a recommendation by the
State Department of Social Services when it is acting as an adoption
agency in counties that are not served by a county adoption agency or
by a licensed county adoption agency that adoption is not in the
best interest 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.
If the court orders that a child who is 10 years of age or older
remain in long-term foster care at a group home, 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.
(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 other
individuals who are important to the child.
(i) 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 licensed county adoption agency, or the State
Department of Social Services when it is acting as an adoption agency
in counties that are not served by a county adoption agency, to
prepare an assessment that shall include:
(1) Current search efforts for an absent parent or parents or
legal guardians.
(2) 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
paragraph shall include, but not be limited to, the child's siblings,
grandparents, aunts, and uncles.
(3) An evaluation of the child's medical, developmental,
scholastic, mental, and emotional status.
(4) 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 guardian is a relative
of the minor, and the relative was assessed for foster care placement
of the minor prior to January 1, 1998, the assessment shall also
consider, but need not be limited to, all of the factors specified in
subdivision (a) of Section 361.3.
(5) The relationship of the child to any identified prospective
adoptive parent or legal guardian, the duration and character of the
relationship, the motivation for seeking adoption or guardianship,
and a statement from the child concerning placement and the adoption
or guardianship, 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.
(6) 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.
(7) An analysis of the likelihood that the child will be adopted
if parental rights are terminated.
(j) If, at any hearing held pursuant to Section 366.26, a
guardianship is established for the minor with a relative, and
juvenile court dependency is subsequently dismissed, the relative
shall be eligible for aid under the Kin-GAP program as provided in
Article 4.5 (commencing with Section 11360) 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.
(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.
366.22. (a) When a case has been continued pursuant to paragraph
(1) 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. 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. 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.
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 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, guardianship, or long-term foster care is the most
appropriate plan for the child. 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 in counties that are
not served by a county adoption agency or by a licensed county
adoption agency, that there is a compelling reason, as described in
paragraph (2) 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
and has no one willing to accept legal guardianship, then the court
may, only under these circumstances, order that the child remain in
foster care. If the court orders that a child who is 10 years of age
or older remain in long-term foster care with a nonrelative, the
court shall determine whether the agency has made reasonable efforts
to maintain the child's relationships with individuals other than the
child's siblings who are important to the child, consistent with the
child's best interests, and may make any appropriate order to ensure
that those relationships are maintained. The hearing shall be held
no later than 120 days from the date of the permanency review
hearing. The court shall also order termination of reunification
services to the parent or legal guardian. The court shall continue
to permit the parent or legal guardian to visit the child unless it
finds that visitation would be detrimental to the child. The court
shall determine whether reasonable services have been offered or
provided to the parent or legal guardian. For purposes of this
subdivision, evidence of any of the following circumstances shall
not, in and of themselves, be deemed a failure to provide or offer
reasonable services:
(1) The child has been placed with a foster family that is
eligible to adopt a child, or has been placed in a preadoptive home.
(2) The case plan includes services to make and finalize a
permanent placement for the child if efforts to reunify fail.
(3) Services to make and finalize a permanent placement for the
child, if efforts to reunify fail, are provided concurrently with
services to reunify the family.
(b) 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 licensed county adoption agency, or the State
Department of Social Services when it is acting as an adoption agency
in counties that are not served by a county adoption agency, to
prepare an assessment that shall include:
(1) Current search efforts for an absent parent or parents.
(2) 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.
(3) An evaluation of the child's medical, developmental,
scholastic, mental, and emotional status.
(4) 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, and the relative was assessed for foster care
placement of the minor prior to January 1, 1998, the assessment shall
also consider, but need not be limited to, all of the factors
specified in subdivision (a) of Section 361.3.
(5) The relationship of the child to any identified prospective
adoptive parent or legal guardian, the duration and character of the
relationship, the motivation for seeking adoption or legal
guardianship, and a statement from the child concerning placement and
the adoption or legal guardianship, 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.
(6) An analysis of the likelihood that the child will be adopted
if parental rights are terminated.
(c) 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 a relative, and juvenile court
dependency is subsequently dismissed, the relative shall be eligible
for aid under the Kin-GAP program as provided in Article 4.5
(commencing with Section 11360) of Chapter 2 of Part 3 of Division 9.
(d) 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.
366.26. (a) This section applies to children who are adjudged
dependent children of the juvenile court pursuant to subdivision (c)
of Section 360. The procedures specified herein are the exclusive
procedures for conducting these hearings; Part 2 (commencing with
Section 3020) of Division 8 of the Family Code is not applicable to
these proceedings. Section 8714.7 of the Family Code is applicable
and available to all dependent children meeting the requirements of
that section, if the postadoption contact agreement has been entered
into voluntarily. For children who are adjudged dependent children
of the juvenile court pursuant to subdivision (c) of Section 360,
this section and Sections 8604, 8605, 8606, and 8700 of the Family
Code and Chapter 5 (commencing with Section 7660) of Part 3 of
Division 12 of the Family Code specify the exclusive procedures for
permanently terminating parental rights with regard to, or
establishing legal guardianship of, the child while the child is a
dependent child of the juvenile court.
(b) At the hearing, that shall be held in juvenile court for all
children who are dependents of the juvenile court, the court, in
order to provide stable, permanent homes for these children, shall
review the report as specified in Section 361.5, 366.21, or 366.22,
shall indicate that the court has read and considered it, shall
receive other evidence that the parties may present, and then shall
make findings and orders in the following order of preference:
(1) Terminate the rights of the parent or parents and order that
the child be placed for adoption and, upon the filing of a petition
for adoption in the juvenile court, order that a hearing be set. The
court shall proceed with the adoption after the appellate rights of
the natural parents have been exhausted.
(2) On making a finding under paragraph (3) of subdivision (c),
identify adoption as the permanent placement goal and order that
efforts be made to locate an appropriate adoptive family for the
child within a period not to exceed 180 days.
(3) Appoint a legal guardian for the child and order that letters
of guardianship issue.
(4) Order that the child be placed in long-term foster care,
subject to the periodic review of the juvenile court under Section
366.3.
In choosing among the above alternatives the court shall proceed
pursuant to subdivision (c).
(c) (1) If the court determines, based on the assessment provided
as ordered under subdivision (i) of Section 366.21 or subdivision (b)
of Section 366.22, and any other relevant evidence, by a clear and
convincing standard, that it is likely the child will be adopted, the
court shall terminate parental rights and order the child placed for
adoption. The fact that the child is not yet placed in a
preadoptive home nor with a relative or foster family who is prepared
to adopt the child, shall not constitute a basis for the court to
conclude that it is not likely the child will be adopted. A finding
under subdivision (b) or paragraph (1) of subdivision (e) of Section
361.5 that reunification services shall not be offered, under
subdivision (e) of Section 366.21 that the whereabouts of a parent
have been unknown for six months or that the parent has failed to
visit or contact the child for six months or that the parent has been
convicted of a felony indicating parental unfitness, or, under
Section 366.21 or 366.22, that the court has continued to remove the
child from the custody of the parent or guardian and has terminated
reunification services, shall constitute a sufficient basis for
termination of parental rights unless the court finds a compelling
reason for determining that termination would be detrimental to the
child due to one or more of the following circumstances:
(A) The parents or guardians have maintained regular visitation
and contact with the child and the child would benefit from
continuing the relationship.
(B) A child 12 years of age or older objects to termination of
parental rights.
(C) The child is placed in a residential treatment facility,
adoption is unlikely or undesirable, and continuation of parental
rights will not prevent finding the child a permanent family
placement if the parents cannot resume custody when residential care
is no longer needed.
(D) The child is living with a relative or foster parent who is
unable or unwilling to adopt the child because of exceptional
circumstances, that do not include an unwillingness to accept legal
or financial responsibility for the child, but who is willing and
capable of providing the child with a stable and permanent
environment and the removal of the child from the physical custody of
his or her relative or foster parent would be detrimental to the
emotional well-being of the child. This subparagraph does not apply
to any child who is living with a nonrelative and who is either (i)
under six years of age or (ii) a member of a sibling group where at
least one child is under six years of age and the siblings are, or
should be, permanently placed together.
(E) There would be substantial interference with a child's sibling
relationship, taking into consideration the nature and extent of the
relationship, including, but not limited to, whether the child was
raised with a sibling in the same home, whether the child shared
significant common experiences or has existing close and strong bonds
with a sibling, and whether ongoing contact is in the child's best
interest, including the child's long-term emotional interest, as
compared to the benefit of legal permanence through adoption.
If the court finds that termination of parental rights would be
detrimental to the child pursuant to subparagraph (A), (B), (C), (D),
or (E), it shall state its reasons in writing or on the record.
(2) The court shall not terminate parental rights if at each and
every hearing at which the court was required to consider reasonable
efforts or services, the court has found that reasonable efforts were
not made or that reasonable services were not offered or provided.
(3) If the court finds that termination of parental rights would
not be detrimental to the child pursuant to paragraph (1) and that
the child has a probability for adoption but is difficult to place
for adoption and there is no identified or available prospective
adoptive parent, the court may identify adoption as the permanent
placement goal and without terminating parental rights, order that
efforts be made to locate an appropriate adoptive family for the
child within a period not to exceed 180 days. During this 180-day
period, the public agency responsible for seeking adoptive parents
for each child shall, to the extent possible, ask each child who is
10 years of age or older to identify any individuals who are
important to the child, to identify potential adoptive parents. The
public agency may ask any child who is younger than 10 years of age
to provide that information, as appropriate. During the 180-day
period, the public agency shall, to the extent possible, contact
other private and public adoption agencies regarding the availability
of the child for adoption. During the 180-day period, the public
agency shall conduct the search for adoptive parents in the same
manner as prescribed for children in Sections 8708 and 8709 of the
Family Code. At the expiration of this period, another hearing shall
be held and the court shall proceed pursuant to paragraph (1), (3),
or of subdivision (b). For purposes of this section, a child may
only be found to be difficult to place for adoption if there is no
identified or available prospective adoptive parent for the child
because of the child's membership in a sibling group, or the presence
of a diagnosed medical, physical, or mental handicap, or the child
is the age of seven years or more.
(4) (A) If the court finds that adoption of the child or
termination of parental rights is not in the best interest of the
child, because one of the conditions in subparagraph (A), (B), (C),
(D), or (E) of paragraph (1) or in paragraph (2) applies, the court
shall either order that the present caretakers or other appropriate
persons shall become legal guardians of the child or order that the
child remain in long-term foster care. Legal guardianship shall be
considered before long-term foster care, if it is in the best
interests of the child and if a suitable guardian can be found. A
child who is 10 years of age or older who is placed in a group home
shall be asked to identify any individuals who are important to the
child to identify potential guardians. The agency may ask any child
who is younger than 10 years of age to provide that information, as
appropriate.
(B) If the child is living with a relative or a foster parent who
is willing and capable of providing a stable and permanent
environment, but not willing to become a legal guardian, the child
shall not be removed from the home if the court finds the removal
would be seriously detrimental to the emotional well-being of the
child because the child has substantial psychological ties to the
relative caretaker or foster parents. The court shall also make an
order for visitation with the parents or guardians unless the court
finds by a preponderance of the evidence that the visitation would be
detrimental to the physical or emotional well-being of the child.
(5) If the court finds that the child should not be placed for
adoption, that legal guardianship shall not be established, and that
there are no suitable foster parents except exclusive-use homes
available to provide the child with a stable and permanent
environment, the court may order the care, custody, and control of
the child transferred from the county welfare department to a
licensed foster family agency. The court shall consider the written
recommendation of the county welfare director regarding the
suitability of the transfer. The transfer shall be subject to
further court orders.
The licensed foster family agency shall place the child in a
suitable licensed or exclusive-use home which has been certified by
the agency as meeting licensing standards. The licensed foster
family agency shall be responsible for supporting the child and for
providing appropriate services to the child, including those services
ordered by the court. Responsibility for the support of the child
shall not, in and of itself, create liability on the part of the
foster family agency to third persons injured by the child. Those
children whose care, custody, and control are transferred to a foster
family agency shall not be eligible for foster care maintenance
payments or child welfare services, except for emergency response
services pursuant to Section 16504.
(d) The proceeding for the appointment of a guardian for a child
who is a dependent of the juvenile court shall be in the juvenile
court. If the court finds pursuant to this section that legal
guardianship is the appropriate permanent plan, it shall appoint the
legal guardian and issue letters of guardianship. The assessment
prepared pursuant to subdivision (g) of Section 361.5, subdivision
(i) of Section 366.21, and subdivision (b) of Section 366.22 shall be
read and considered by the court prior to the appointment, and this
shall be reflected in the minutes of the court. The person preparing
the assessment may be called and examined by any party to the
proceeding.
(e) The proceeding for the adoption of a child who is a dependent
of the juvenile court shall be in the juvenile court if the court
finds pursuant to this section that adoption is the appropriate
permanent plan and the petition for adoption is filed in the juvenile
court. Upon the filing of a petition for adoption, the juvenile
court shall order that an adoption hearing be set. The court shall
proceed with the adoption after the appellate rights of the natural
parents have been exhausted. The full report required by Section
8715 of the Family Code shall be read and considered by the court
prior to the adoption and this shall be reflected in the minutes of
the court. The person preparing the report may be called and
examined by any party to the proceeding. It is the intent of the
Legislature, pursuant to this subdivision, to give potential adoptive
parents the option of filing in the juvenile court the petition for
the adoption of a child who is a dependent of the juvenile court.
Nothing in this section is intended to prevent the filing of a
petition for adoption in any other court as permitted by law, instead
of in the juvenile court.
(f) At the beginning of any proceeding pursuant to this section,
if the child or the parents are not being represented by previously
retained or appointed counsel, the court shall proceed as follows:
(1) The court shall consider whether the interests of the child
require the appointment of counsel. If the court finds that the
interests of the child do require this protection, the court shall
appoint counsel to represent the child. If the court finds that the
interests of the child require the representation of counsel, counsel
shall be appointed whether or not the child is able to afford
counsel. A child under 10 years of age may not be present in court
unless the child or the child's counsel so requests or the court so
orders.
(2) If a parent appears without counsel and is unable to afford
counsel, the court shall appoint counsel for the parent, unless this
representation is knowingly and intelligently waived. The same
counsel shall not be appointed to represent both the child and his or
her parent. The public defender or private counsel may be appointed
as counsel for the parent.
(3) Private counsel appointed under this section shall receive a
reasonable sum for compensation and expenses, the amount of which
shall be determined by the court. The amount shall be paid by the
real parties in interest, other than the child, in any proportions
the court deems just. However, if the court finds that any of the
real parties in interest are unable to afford counsel, the amount
shall be paid out of the general fund of the county.
(g) The court may continue the proceeding for not to exceed 30
days as necessary to appoint counsel, and to enable counsel to become
acquainted with the case.
(h) (1) At all proceedings under this section, the court shall
consider the wishes of the child and shall act in the best interests
of the child.
(2) If the child is 10 years of age or older and is not present at
a hearing held pursuant to this section, the court shall determine
whether the minor was properly notified of his or her right to attend
the hearing and inquire as to the reason why the child is not
present.
(3) (A) The testimony of the child may be taken in chambers and
outside the presence of the child's parent or parents if the child's
parent or parents are represented by counsel, the counsel is present,
and any of the following circumstances exist:
(i) The court determines that testimony in chambers is necessary
to ensure truthful testimony.
(ii) The child is likely to be intimidated by a formal courtroom
setting.
(iii) The child is afraid to testify in front of his or her parent
or parents.
(B) After testimony in chambers, the parent or parents of the
child may elect to have the court reporter read back the testimony or
have the testimony summarized by counsel for the parent or parents.
(C) The testimony of a child also may be taken in chambers and
outside the presence of the guardian or guardians of a child under
the circumstances specified in this subdivision.
(i) Any order of the court permanently terminating parental rights
under this section shall be conclusive and binding upon the child,
upon the parent or parents and upon all other persons who have been
served with citation by publication or otherwise as provided in this
chapter. After making the order, the court shall have no power to
set aside, change, or modify it, but nothing in this section shall be
construed to limit the right to appeal the order.
(j) If the court, by order or judgment declares the child free
from the custody and control of both parents, or one parent if the
other does not have custody and control, the court shall at the same
time order the child referred to the State Department of Social
Services or a licensed adoption agency for adoptive placement by the
agency. However, no petition for adoption may be granted until the
appellate rights of the natural parents have been exhausted. The
State Department of Social Services or licensed adoption agency shall
be responsible for the custody and supervision of the child and
shall be entitled to the exclusive care and control of the child at
all times until a petition for adoption is granted. With the consent
of the agency, the court may appoint a guardian of the child, who
shall serve until the child is adopted.
(k) Notwithstanding any other provision of law, the application of
any person who, as a relative caretaker or foster parent, has cared
for a dependent child for whom the court has approved a permanent
plan for adoption, or who has been freed for adoption, shall be given
preference with respect to that child over all other applications
for adoptive placement if the agency making the placement determines
that the child has substantial emotional ties to the relative
caretaker or foster parent and removal from the relative caretaker or
foster parent would be seriously detrimental to the child's
emotional well-being.
As used in this subdivision, "preference" means that the
application shall be processed and, if satisfactory, the family study
shall be completed before the processing of the application of any
other person for the adoptive placement of the child.
(l) (1) An order by the court that a hearing pursuant to this
section be held is not appealable at any time unless all of the
following applies:
(A) A petition for extraordinary writ review was filed in a timely
manner.
(B) The petition substantively addressed the specific issues to be
challenged and supported that challenge by an adequate record.
(C) The petition for extraordinary writ review was summarily
denied or otherwise not decided on the merits.
(2) Failure to file a petition for extraordinary writ review
within the period specified by rule, to substantively address the
specific issues challenged, or to support that challenge by an
adequate record shall preclude subsequent review by appeal of the
findings and orders made pursuant to this section.
(3) The Judicial Council shall adopt rules of court, effective
January 1, 1995, to ensure all of the following:
(A) A trial court, after issuance of an order directing a hearing
pursuant to this section be held, shall advise all parties of the
requirement of filing a petition for extraordinary writ review as set
forth in this subdivision in order to preserve any right to appeal
in these issues. This notice shall be made orally to a party if they
are present at the time of the making of the order or by first-class
mail by the clerk of the court to the last known address of a party
not present at the time of the making of the order.
(B) The prompt transmittal of the records from the trial court to
the appellate court.
(C) That adequate time requirements for counsel and court
personnel exist to implement the objective of this subdivision.
(D) That the parent or guardian, or their trial counsel or other
counsel, is charged with the responsibility of filing a petition for
extraordinary writ relief pursuant to this subdivision.
(4) The intent of this subdivision is to do both of the following:
(A) Make every reasonable attempt to achieve a substantive and
meritorious review by the appellate court within the time specified
in Sections 366.21 and 366.22 for holding a hearing pursuant to this
section.
(B) Encourage the appellate court to determine all writ petitions
filed pursuant to this subdivision on their merits.
(5) This subdivision shall only apply to cases in which an order
to set a hearing pursuant to this section is issued on or after
January 1, 1995.
(m) Except for subdivision (j), this section shall also apply to
minors adjudged wards pursuant to Section 727.31.
366.27. (a) If a court, pursuant to paragraph (3) of subdivision
(g) of Section 366.21, Section 366.22, or Section 366.26, orders the
placement of a minor in a planned permanent living arrangement with a
relative, the court may authorize the relative to provide the same
legal consent for the minor's medical, surgical, and dental care as
the custodial parent of the minor.
(b) If a court orders the placement of a minor in a planned
permanent living arrangement with a foster parent, relative
caretaker, or nonrelative extended family member as defined in
Section 362.7, the court may limit the right of the minor's parent or
guardian to make educational decisions on the minor's behalf, so
that the foster parent, relative caretaker, or nonrelative extended
family member may exercise the educational consent duties pursuant to
Section 56055 of the Education Code.
(c) If a court orders the placement of a minor in a planned
permanent living arrangement, for purposes of this section, a foster
parent shall include a person, relative caretaker, or a nonrelative
extended family member as defined in Section 362.7, who has been
licensed or approved by the county welfare department, county
probation department, or the State Department of Social Services, or
has been designated by the court as a specified placement.
366.28. (a) The Legislature finds and declares that delays caused
by appeals from court orders designating the specific placement of a
dependent child after parental rights have been terminated may cause
a substantial detriment to the child. The Legislature recognizes
that the juvenile court intervenes in placement decisions after
parental rights have been terminated only in exceptional
circumstances, and this section is not intended to place additional
authority or responsibility on the juvenile court.
(b) (1) After parental rights have been terminated pursuant to
Section 366.26, an order by the court that a dependent child is to
reside in, be retained in, or be removed from a specific placement,
is not appealable at any time unless all of the following apply:
(A) A petition for extraordinary writ review was filed in a timely
manner.
(B) The petition substantively addressed the specific issues to be
challenged and supported that challenge by an adequate record.
(C) The petition was summarily denied or otherwise not decided on
the merits.
(2) Failure to file a petition for extraordinary writ review
within the period specified by rule of court, to substantively
address the specific placement order that is challenged, or to
support that challenge by an adequate record shall preclude
subsequent review by appeal of the findings and orders made pursuant
to this section.
(c) This section does not affect the right of a parent, a legal
guardian, or the child to appeal any order that is otherwise
appealable and that is issued at a hearing held pursuant to Section
366.26.
(d) The Judicial Council shall adopt a rule of court on or before
July 1, 2004, to implement this section. This section shall become
operative after the rule of court is adopted.
366.29. (a) When a court, pursuant to Section 366.26, orders that a
dependent child be placed for adoption, nothing in the adoption laws
of this state shall be construed to prevent the prospective adoptive
parent or parents of the child from expressing a willingness to
facilitate postadoptive sibling contact. With the consent of the
adoptive parent or parents, the court may include in the final
adoption order provisions for the adoptive parent or parents to
facilitate postadoptive sibling contact. In no event shall the
continuing validity of the adoption be contingent upon the
postadoptive contact, nor shall the ability of the adoptive parent or
parents and the child to change residence within or outside the
state be impaired by the order for contact.
(b) If, following entry of an order for sibling contact pursuant
to subdivision (a), it is determined by the adoptive parent or
parents that sibling contact poses a threat to the health, safety, or
well-being of the adopted child, the adoptive parent or parents may
terminate the sibling contact, provided that the adoptive parent or
parents shall submit written notification to the court within 10 days
after terminating the contact, which notification shall specify to
the court the reasons why the health, safety, or well-being of the
adopted child would be threatened by continued sibling contact.
(c) Upon the granting of the adoption petition and the issuing of
the order of adoption of a child who is a dependent of the juvenile
court, the jurisdiction of the juvenile court with respect to the
dependency proceedings of that child shall be terminated.
Nonetheless, the court granting the petition of adoption shall
maintain jurisdiction over the child for enforcement of the
postadoption contact agreement. The court may only order compliance
with the postadoption contact agreement upon a finding of both of the
following:
(1) The party seeking the enforcement participated, in good faith,
in mediation or other appropriate alternative dispute resolution
proceedings regarding the conflict, prior to the filing of the
enforcement action.
(2) The enforcement is in the best interest of the child.
366.3. (a) If a juvenile court orders a permanent plan of adoption
or legal guardianship pursuant to Section 360 or 366.26, the court
shall retain jurisdiction over the child until the child is adopted
or the legal guardianship is established, except as provided for in
Section 366.29. The status of the child shall be reviewed every six
months to ensure that the adoption or legal guardianship is completed
as expeditiously as possible. When the adoption of the child has
been granted, the court shall terminate its jurisdiction over the
child. Following establishment of a legal guardianship, the court
may continue jurisdiction over the child as a dependent child of the
juvenile court or may terminate its dependency jurisdiction and
retain jurisdiction over the child as a ward of the legal
guardianship, as authorized by Section 366.4. If, however, a
relative of the child is appointed the legal guardian of the child
and the child has been placed with the relative for at least 12
months, the court shall, except if the relative guardian objects, or
upon a finding of exceptional circumstances, terminate its dependency
jurisdiction and retain jurisdiction over the child as a ward of the
guardianship, as authorized by Section 366.4. Following a
termination of parental rights the parent or parents shall not be a
party to, or receive notice of, any subsequent proceedings regarding
the child.
(b) If the court has dismissed dependency jurisdiction following
the establishment of a legal guardianship, or no dependency
jurisdiction attached because of the granting of a legal guardianship
pursuant to Section 360, and the legal guardianship is subsequently
revoked or otherwise terminated, the county department of social
services or welfare department shall notify the juvenile court of
this fact. The court may vacate its previous order dismissing
dependency jurisdiction over the child.
Notwithstanding Section 1601 of the Probate Code, the proceedings
to terminate a legal guardianship that has been granted pursuant to
Section 360 or 366.26 shall be held in the juvenile court, unless the
termination is due to the emancipation or adoption of the child.
Prior to the hearing on a petition to terminate legal guardianship
pursuant to this paragraph, the court shall order the county
department of social services or welfare department to prepare a
report, for the court's consideration, that shall include an
evaluation of whether the child could safely remain in the legal
guardian's home, without terminating the legal guardianship, if
services were provided to the child or legal guardian. If
applicable, the report shall also identify recommended services to
maintain the legal guardianship and set forth a plan for providing
those services. If the petition to terminate legal guardianship is
granted, the juvenile court may resume dependency jurisdiction over
the child, and may order the county department of social services or
welfare department to develop a new permanent plan, which shall be
presented to the court within 60 days of the termination. If no
dependency jurisdiction has attached, the social worker shall make
any investigation he or she deems necessary to determine whether the
child may be within the jurisdiction of the juvenile court, as
provided in Section 328.
Unless the parental rights of the child's parent or parents have
been terminated, they shall be notified that the legal guardianship
has been revoked or terminated and shall be entitled to participate
in the new permanency planning hearing. The court shall try to place
the child in another permanent placement. At the hearing, the
parents may be considered as custodians but the child shall not be
returned to the parent or parents unless they prove, by a
preponderance of the evidence, that reunification is the best
alternative for the child. The court may, if it is in the best
interests of the child, order that reunification services again be
provided to the parent or parents.
(c) If, following the establishment of a legal guardianship, the
county welfare department becomes aware of changed circumstances that
indicate adoption may be an appropriate plan for the child, the
department shall so notify the court. The court may vacate its
previous order dismissing dependency jurisdiction over the child and
order that a hearing be held pursuant to Section 366.26 to determine
whether adoption or continued legal guardianship is the most
appropriate plan for the child. The hearing shall be held no later
than 120 days from the date of the order. If the court orders that a
hearing shall be held pursuant to Section 366.26, the court shall
direct the agency supervising the child and the licensed county
adoption agency, or the State Department of Social Services if it is
acting as an adoption agency in counties that are not served by a
county adoption agency, to prepare an assessment under subdivision
(b) of Section 366.22.
(d) If the child is in a placement other than the home of a legal
guardian and jurisdiction has not been dismissed, the status of the
child shall be reviewed at least every six months. The review of the
status of a child for whom the court has ordered parental rights
terminated and who has been ordered placed for adoption shall be
conducted by the court. The review of the status of a child for whom
the court has not ordered parental rights terminated and who has not
been ordered placed for adoption may be conducted by the court or an
appropriate local agency. The court shall conduct the review under
the following circumstances:
(1) Upon the request of the child's parents or legal guardians.
(2) Upon the request of the child.
(3) It has been 12 months since a hearing held pursuant to Section
366.26 or an order that the child remain in long-term foster care
pursuant to Section 366.21, 366.22, 366.26, or subdivision (g).
(4) It has been 12 months since a review was conducted by the
court.
The court shall determine whether or not reasonable efforts to
make and finalize a permanent placement for the child have been made.
(e) Except as provided in subdivision (f), at the review held
every six months pursuant to subdivision (d), the reviewing body
shall inquire about the progress being made to provide a permanent
home for the child, shall consider the safety of the child, and shall
determine all of the following:
(1) The continuing necessity for and appropriateness of the
placement.
(2) Identification of individuals other than the child's siblings
who are important to a child who is 10 years of age or older who is
not placed with a relative, and actions necessary to maintain the
child's relationship with those individuals, provided that those
relationships are in the best interest of the child. The social
worker shall ask every child who is 10 years of age or older who is
not placed with a relative to identify individuals other than the
child's siblings who are important to the child, and may ask any
child who is younger than 10 years of age to provide that
information, as appropriate. The social worker shall make efforts to
identify other individuals who are important to the child,
consistent with the child's best interests.
(3) The continuing appropriateness and extent of compliance with
the permanent plan for the child, including efforts to maintain
relationships between the child and individuals who are important to
the child and efforts to identify a prospective adoptive parent or
legal guardian, including, but not limited to, child specific
recruitment efforts and listing on an adoption exchange.
(4) The extent of the agency's compliance with the child welfare
services case plan in making reasonable efforts to return the child
to a safe home and to complete whatever steps are necessary to
finalize the permanent placement of the child.
(5) Whether there should be any limitation on the right of the
parent or guardian to make educational decisions for the child. That
limitation shall be specifically addressed in the court order and
may not exceed what is necessary to protect the child. If the court
specifically limits the right of the parent or guardian to make
educational decisions for the child, the court shall at the same time
appoint a responsible adult to make educational decisions for the
child pursuant to Section 361.
(6) The adequacy of services provided to the child. The court
shall consider the progress in providing the information and
documents to the child, as described in Section 391. The court shall
also consider the need for, and progress in providing, the
assistance and services described in paragraphs (3) and (4) of
subdivision (b) of Section 391.
(7) The extent of progress the parents or legal guardians have
made toward alleviating or mitigating the causes necessitating
placement in foster care.
(8) The likely date by which the child may be returned to and
safely maintained in the home, placed for adoption, legal
guardianship, or in another planned permanent living arrangement.
(9) 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, the frequency and
nature of the visits between siblings.
(E) The impact of the sibling relationships on the child's
placement and planning for legal permanence.
The factors the court may consider as indicators of the nature of
the child's sibling relationships include, but are 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.
(10) For a child who is 16 years of age or older, the services
needed to assist the child to make the transition from foster care to
independent living.
The reviewing body shall determine whether or not reasonable
efforts to make and finalize a permanent placement for the child have
been made.
Each licensed foster family agency shall submit reports for each
child in its care, custody, and control to the court concerning the
continuing appropriateness and extent of compliance with the child's
permanent plan, the extent of compliance with the case plan, and the
type and adequacy of services provided to the child.
Unless their parental rights have been permanently terminated, the
parent or parents of the child are entitled to receive notice of,
and participate in, those hearings. It shall be presumed that
continued care is in the best interests of the child, unless the
parent or parents prove, by a preponderance of the evidence, that
further efforts at reunification are the best alternative for the
child. In those cases, the court may order that further
reunification services to return the child to a safe home environment
be provided to the parent or parents for a period not to exceed six
months.
(f) At the review conducted by the court and held at least every
six months, regarding a child for whom the court has ordered parental
rights terminated and who has been ordered placed for adoption, the
county welfare department shall prepare and present to the court a
report describing the following:
(1) The child's present placement.
(2) The child's current physical, mental, emotional, and
educational status.
(3) If the child has not been placed with a prospective adoptive
parent or guardian, identification of individuals who are important
to the child and actions necessary to maintain the child's
relationship with those individuals. The agency shall ask every
child who is 10 years of age or older to identify any individuals who
are important to him or her, consistent with the child's best
interest, and may ask any child who is younger than 10 years of age
to provide that information as appropriate. The agency shall make
efforts to identify other individuals who are important to the child.
(4) Whether the child has been placed with a prospective adoptive
parent or parents.
(5) Whether an adoptive placement agreement has been signed and
filed.
(6) If the child has not been placed with a prospective adoptive
parent or parents, the efforts made to identify an appropriate
prospective adoptive parent or legal guardian, including, but not
limited to, child specific recruitment efforts and listing on an
adoption exchange.
(7) Whether the final adoption order should include provisions for
postadoptive sibling contact pursuant to Section 366.29.
(8) The progress of the search for an adoptive placement if one
has not been identified.
(9) Any impediments to the adoption or the adoptive placement.
(10) The anticipated date by which the child will be adopted, or
placed in an adoptive home.
(11) The anticipated date by which an adoptive placement agreement
will be signed.
(12) Recommendations for court orders that will assist in the
placement of the child for adoption or in the finalization of the
adoption.
The court shall determine whether or not reasonable efforts to
make and finalize a permanent placement for the child have been made.
The court shall make appropriate orders to protect the stability
of the child and to facilitate and expedite the permanent placement
and adoption of the child.
(g) At the review held pursuant to subdivision (d) for a child in
long-term foster care, the court shall consider all permanency
planning options for the child including whether the child should be
returned to the home of the parent, placed for adoption, or appointed
a legal guardian, or, if compelling reasons exist for finding that
none of the foregoing options are in the best interest of the child,
whether the child should be placed in another planned permanent
living arrangement. The court shall order that a hearing be held
pursuant to Section 366.26 unless it determines by clear and
convincing evidence, that there is a compelling reason for
determining that a hearing held pursuant to Section 366.26 is not in
the best interest of the child because the child is being returned to
the home of the parent, the child is not a proper subject for
adoption, or no one is willing to accept legal guardianship. If the
licensed county adoption agency, or the department when it is acting
as an adoption agency in counties that are not served by a county
adoption agency, has determined it is unlikely that the child will be
adopted or one of the conditions described in paragraph (1) of
subdivision (c) of Section 366.26 applies, that fact shall constitute
a compelling reason for purposes of this subdivision. Only upon
that determination may the court order that the child remain in
foster care, without holding a hearing pursuant to Section 366.26.
(h) If, as authorized by subdivision (g), the court orders a
hearing pursuant to Section 366.26, the court shall direct the agency
supervising the child and the licensed county adoption agency, or
the State Department of Social Services when it is acting as an
adoption agency in counties that are not served by a county adoption
agency, to prepare an assessment as provided for in subdivision (i)
of Section 366.21 or subdivision (b) of Section 366.22. A hearing
held pursuant to Section 366.26 shall be held no later than 120 days
from the date of the 12-month review at which it is ordered, and at
that hearing the court shall determine whether adoption, legal
guardianship, or long-term foster care is the most appropriate plan
for the child.
366.4. (a) Any minor for whom a guardianship has been established
resulting from the selection or implementation of a permanency plan
pursuant to Section 366.26 is within the jurisdiction of the juvenile
court. For those minors, Part 2 (commencing with Section 1500) of
Division 4 of the Probate Code, relating to guardianship, shall not
apply. If no specific provision of this code or the California Rules
of Court is applicable, the provisions applicable to the
administration of estates under Part 4 (commencing with Section 2100)
of Division 4 of the Probate Code govern so far as they are
applicable to like situations.
(b) Nonrelated legal guardians of the person of a minor
established as a result of a permanency plan selected pursuant to
Section 366.26 shall be exempt from the provisions of Sections 2850
and 2851 of the Probate Code.
367. (a) Whenever a person has been adjudged a dependent child of
the juvenile court and has been committed or otherwise disposed of as
provided in this chapter for the care of dependent children of the
juvenile court, the court may order that the dependent child be
detained in a suitable place designated as the court deems fit until
the execution of the order of commitment or of other disposition.
(b) In any case in which a child is detained for more than 15 days
pending the execution of the order of commitment or of any other
disposition, the court shall periodically review the case to
determine whether the delay is reasonable. These periodic reviews
shall be held at least every 15 days, commencing from the time the
child was initially detained pending the execution of the order of
commitment or of any other disposition, and during the course of each
review the court shall inquire regarding the action taken by the
social worker to carry out its order, the reasons for the delay, and
the effect of the delay upon the child.
368. In a case where the residence of a dependent child of the
juvenile court is out of the state and in another state or foreign
country, or in a case where that child is a resident of this state
but his or her parents, relatives, guardian, or person charged with
his or her custody is in another state, the court may order that
child sent to his or her parents, relatives, or guardian, or to the
person charged with his or her custody, or, if the child is a
resident of a foreign country, to an official of a juvenile court of
that foreign country or an agency of a country authorized to accept
the child, and in that case may order transportation and
accommodation furnished, with or without an attendant, as the court
deems necessary. If the court deems an attendant necessary, the
court may order the social worker or other suitable person to serve
as the attendant. The social worker shall authorize the necessary
expenses of the child and of the attendant and claims therefor shall
be audited, allowed and paid in the same manner as other county
claims.
369. (a) Whenever any person is taken into temporary custody under
Article 7 (commencing with Section 305) and is in need of medical,
surgical, dental, or other remedial care, the social worker may, upon
the recommendation of the attending physician and surgeon or, if the
person needs dental care and there is an attending dentist, the
attending dentist, authorize the performance of the medical,
surgical, dental, or other remedial care. The social worker shall
notify the parent, guardian, or person standing in loco parentis of
the person, if any, of the care found to be needed before that care
is provided, and if the parent, guardian, or person standing in loco
parentis objects, that care shall be given only upon order of the
court in the exercise of its discretion.
(b) Whenever it appears to the juvenile court that any person
concerning whom a petition has been filed with the court is in need
of medical, surgical, dental, or other remedial care, and that there
is no parent, guardian, or person standing in loco parentis capable
of authorizing or willing to authorize the remedial care or treatment
for that person, the court, upon the written recommendation of a
licensed physician and surgeon or, if the person needs dental care, a
licensed dentist, and after due notice to the parent, guardian, or
person standing in loco parentis, if any, may make an order
authorizing the performance of the necessary medical, surgical,
dental, or other remedial care for that person.
(c) Whenever a dependent child of the juvenile court is placed by
order of the court within the care and custody or under the
supervision of a social worker of the county in which the dependent
child resides and it appears to the court that there is no parent,
guardian, or person standing in loco parentis capable of authorizing
or willing to authorize medical, surgical, dental, or other remedial
care or treatment for the dependent child, the court may, after due
notice to the parent, guardian, or person standing in loco parentis,
if any, order that the social worker may authorize the medical,
surgical, dental, or other remedial care for the dependent child, by
licensed practitioners, as may from time to time appear necessary.
(d) Whenever it appears that a child otherwise within subdivision
(a), (b), or (c) requires immediate emergency medical, surgical, or
other remedial care in an emergency situation, that care may be
provided by a licensed physician and surgeon or, if the child needs
dental care in an emergency situation, by a licensed dentist, without
a court order and upon authorization of a social worker. The social
worker shall make reasonable efforts to obtain the consent of, or to
notify, the parent, guardian, or person standing in loco parentis
prior to authorizing emergency medical, surgical, dental, or other
remedial care. "Emergency situation," for the purposes of this
subdivision means a child requires immediate treatment for the
alleviation of severe pain or an immediate diagnosis and treatment of
an unforeseeable medical, surgical, dental, or other remedial
condition or contagious disease which if not immediately diagnosed
and treated, would lead to serious disability or death.
(e) In any case in which the court orders the performance of any
medical, surgical, dental, or other remedial care pursuant to this
section, the court may also make an order authorizing the release of
information concerning that care to social workers, parole officers,
or any other qualified individuals or agencies caring for or acting
in the interest and welfare of the child under order, commitment, or
approval of the court.
(f) Nothing in this section shall be construed as limiting the
right of a parent, guardian, or person standing in loco parentis, who
has not been deprived of the custody or control of the child by
order of the court, in providing any medical, surgical, dental, or
other remedial treatment recognized or permitted under the laws of
this state.
(g) The parent of any person described in this section may
authorize the performance of medical, surgical, dental, or other
remedial care provided for in this section notwithstanding his or her
age or marital status. In nonemergency situations the parent
authorizing the care shall notify the other parent prior to the
administration of that care.
369.5. (a) If a child is adjudged a dependent child of the court
under Section 300 and the child has been removed from the physical
custody of the parent under Section 361, only a juvenile court
judicial officer shall have authority to make orders regarding the
administration of psychotropic medications for that child. The
juvenile court may issue a specific order delegating this authority
to a parent upon making findings on the record that the parent poses
no danger to the child and has the capacity to authorize psychotropic
medications. Court authorization for the administration of
psychotropic medication shall be based on a request from a physician,
indicating the reasons for the request, a description of the child's
diagnosis and behavior, the expected results of the medication, and
a description of any side effects of the medication. On or before
July 1, 2000, the Judicial Council shall adopt rules of court and
develop appropriate forms for implementation of this section.
(b) Psychotropic medication or psychotropic drugs are those
medications administered for the purpose of affecting the central
nervous system to treat psychiatric disorders or illnesses. These
medications include, but are not limited to, anxiolytic agents,
antidepressants, mood stabilizers, antipsychotic medications,
anti-Parkinson agents, hypnotics, medications for dementia, and
psychostimulants.
(c) Nothing in this section is intended to supersede local court
rules regarding a minor's right to participate in mental health
decisions.
370. The juvenile court may, in any case before it in which a
petition has been filed as provided in Article 7 (commencing with
Section 305), order that the social worker obtain the services of
those psychiatrists, psychologists, or other clinical experts as may
be required to assist in determining the appropriate treatment of the
child and as may be required in the conduct or implementation of
that treatment. Payment for those services shall be a charge against
the county.
375. Whenever a petition is filed in the juvenile court of a county
other than the residence of the person named in the petition, or
whenever, subsequent to the filing of a petition in the juvenile
court of the county where such minor resides, the residence of the
person who would be legally entitled to the custody of such minor
were it not for the existence of a court order issued pursuant to
this chapter is changed to another county, the entire case may be
transferred to the juvenile court of the county wherein such person
then resides at any time after the court has made a finding of the
facts upon which it has exercised its jurisdiction over such minor,
and the juvenile court of the county wherein such person then resides
shall take jurisdiction of the case upon the receipt and filing with
it of such finding of the facts and an order transferring the case.
376. The expense of the transfer and all expenses in connection
with the transfer and for the support and maintenance of such person
shall be paid from the county treasury of the court ordering the
transfer until the receipt and filing of the finding and order of
transfer in the juvenile court of the transferee county.
The judge shall inquire into the financial condition of such
person and of the parent, parents, guardian, or other person charged
with his support and maintenance, and if he finds such person,
parent, parents, guardian, or other person able, in whole or in part,
to pay the expense of such transfer, he shall make a further order
requiring such person, parent, parents, guardian, or other person to
repay to the county such part, or all, of such expense of transfer
as, in the opinion of the court, is proper. Such repayment shall be
made to the probation officer who shall keep suitable accounts of
such expenses and repayments and shall deposit all such collections
in the county treasury.
377. Whenever a case is transferred as provided in Section 375, the
order of transfer shall recite each and all of the findings, orders,
or modification of orders that have been made in the case, and shall
include the name and address of the legal residence of the parent or
guardian of the minor. All papers contained in the file shall be
transferred to the county where such person resides. A copy of the
order of transfer and of the findings of fact as required in Section
375 shall be kept in the file of the transferring county.
378. Whenever an order of transfer from another county is filed
with the clerk of any juvenile court, the clerk shall place the
transfer order on the calendar of the court, and it shall have
precedence over all actions and civil proceedings not specifically
given precedence by other provisions of law and shall be heard by the
court at the earliest possible moment following the filing of the
order.
379. In any action under the provisions of this article in which
the residence of a minor person is determined, both the county in
which the court is situated and any other county which, as a result
of the determination of residence, might be determined to be the
county of residence of the minor person, shall be considered to be
parties in the action and shall have the right to appeal any order by
which residence of the minor person is determined.
380. Any person adjudged to be a dependent child of the juvenile
court may be permitted by order of the court to reside in a county
other than the county of his or her legal residence, and the court
shall retain jurisdiction over that person.
Whenever a dependent child of the juvenile court is permitted to
reside in a county other than the county of his or her legal
residence, he or she may be placed under the supervision of the
social worker of the county of actual residence, with the consent of
the social worker. The dependent child shall comply with the
instructions of the social worker and upon failure to do so shall be
returned to the county of his or her legal residence for further
hearing and order of the court.
385. Any order made by the court in the case of any person subject
to its jurisdiction may at any time be changed, modified, or set
aside, as the judge deems meet and proper, subject to such procedural
requirements as are imposed by this article.
386. No order changing, modifying, or setting aside a previous
order of the juvenile court shall be made either in chambers, or
otherwise, unless prior notice of the application therefor has been
given by the judge or the clerk of the court to the social worker and
to the child's counsel of record, or, if there is no counsel of
record, to the child and his or her parent or guardian.
387. An order changing or modifying a previous order by removing a
child from the physical custody of a parent, guardian, relative, or
friend and directing placement in a foster home, or commitment to a
private or county institution, shall be made only after noticed
hearing upon a supplemental petition.
(a) The supplemental petition shall be filed by the social worker
in the original matter and shall contain a concise statement of facts
sufficient to support the conclusion that the previous disposition
has not been effective in the rehabilitation or protection of the
child or, in the case of a placement with a relative, sufficient to
show that the placement is not appropriate in view of the criteria in
Section 361.3.
(b) Upon the filing of the supplemental petition, the clerk of the
juvenile court shall immediately set the same for hearing within 30
days, and the social worker shall cause notice thereof to be served
upon the persons and in the manner prescribed by Sections 290.1 and
291.
(c) An order for the detention of the child pending adjudication
of the petition may be made only after a hearing is conducted
pursuant to Article 7 (commencing with Section 305).
388. (a) Any parent or other person having an interest in a child
who is a dependent child of the juvenile court or the child himself
or herself through a properly appointed guardian may, upon grounds of
change of circumstance or new evidence, petition the court in the
same action in which the child was found to be a dependent child of
the juvenile court or in which a guardianship was ordered pursuant to
Section 360 for a hearing to change, modify, or set aside any order
of court previously made or to terminate the jurisdiction of the
court. The petition shall be verified and, if made by a person other
than the child, shall state the petitioner's relationship to or
interest in the child and shall set forth in concise language any
change of circumstance or new evidence which are alleged to require
the change of order or termination of jurisdiction.
(b) Any person, including a child who is a dependent of the
juvenile court, may petition the court to assert a relationship as a
sibling related by blood, adoption, or affinity through a common
legal or biological parent to a child who is, or is the subject of a
petition for adjudication as, a dependent of the juvenile court, and
may request visitation with the dependent child, placement with or
near the dependent child, or consideration when determining or
implementing a case plan or permanent plan for the dependent child or
make any other request for an order which may be shown to be in the
best interest of the dependent child. The court may appoint a
guardian ad litem to file the petition for the dependent child
asserting the sibling relationship if the court determines that the
appointment is necessary for the best interests of the dependent
child. The petition shall be verified and shall set forth the
following:
(1) Through which parent he or she is related to the dependent
child.
(2) Whether he or she is related to the dependent child by blood,
adoption, or affinity.
(3) The request or order that the petitioner is seeking.
(4) Why that request or order is in the best interest of the
dependent child.
(c) If it appears that the best interests of the child may be
promoted by the proposed change of order, recognition of a sibling
relationship, or termination of jurisdiction, the court shall order
that a hearing be held and shall give prior notice, or cause prior
notice to be given, to the persons and by the means prescribed by
Section 386, and, in those instances in which the means of giving
notice is not prescribed by those sections, then by means the court
prescribes.
389. (a) In any case in which a petition has been filed with a
juvenile court to commence proceedings to adjudge a person a
dependent child of the court, in any case in which a person is cited
to appear before a probation officer or is taken before a probation
officer pursuant to Section 307, or in any case in which a minor is
taken before any officer of a law enforcement agency, the person or
the county probation officer may, five years or more after the
jurisdiction of the juvenile court has terminated as to the person,
or, in a case in which no petition is filed, five years or more after
the person was cited to appear before a probation officer or was
taken before a probation officer pursuant to Section 307 or was taken
before any officer of a law enforcement agency, or, in any case, at
any time after the person has reached the age of 18 years, petition
the court for sealing of the records, including records of arrest,
relating to the person's case, in the custody of the juvenile court
and probation officer and any other agencies, including law
enforcement agencies, and public officials as petitioner alleges, in
his petition, to have custody of such records. The court shall notify
the district attorney of the county and the county probation
officer, if he is not the petitioner of the petition, and such
district attorney or probation officer or any of their deputies or
any other person having relevant evidence may testify at the hearing
on the petition. If, after hearing, the court finds that since such
termination of jurisdiction or action pursuant to Section 307, as the
case may be, he has not been convicted of a felony or of any
misdemeanor involving moral turpitude and that rehabilitation has
been attained to the satisfaction of the court, it shall order sealed
all records, papers, and exhibits in the person's case in the
custody of the juvenile court, including the juvenile court record,
minute book entries, and entries on dockets, and other records
relating to the case in the custody of such other agencies and
officials as are named in the order. Thereafter, the proceedings in
such case shall be deemed never to have occurred, and the person may
properly reply accordingly to any inquiry about the events, records
of which are ordered sealed. The court shall send a copy of the
order to each agency and official named therein directing the agency
to seal its records and five years thereafter to destroy the sealed
records. Each such agency and official shall seal records in its
custody as directed by the order, shall advise the court of its
compliance, and thereupon shall seal the copy of the court's order
for sealing of records that it or he received. The person who is the
subject of records sealed pursuant to this section may petition the
superior court to permit inspection of the records by persons named
in the petition, and the superior court may so order. Otherwise,
except as provided in subdivision (b), such records shall not be open
to inspection.
(b) In any action or proceeding based upon defamation, a court,
upon a showing of good cause, may order any records sealed under this
section to be opened and admitted into evidence. The records shall
be confidential and shall be available for inspection only by the
court, jury, parties, counsel for the parties, and any other person
who is authorized by the court to inspect them. Upon the judgment in
the action or proceeding becoming final, the court shall order the
records sealed.
(c) Five years after a juvenile court record has been sealed, the
court shall order the destruction of the sealed juvenile court
record unless for good cause the court determines that the juvenile
court record shall be retained. Any other agency in possession of
sealed records shall destroy their records five years after the
records were ordered sealed.
390. A judge of the juvenile court in which a petition was filed,
at any time before the minor reaches the age of 21 years, may dismiss
the petition or may set aside the findings and dismiss the petition
if the court finds that the interests of justice and the welfare of
the minor require the dismissal, and that the parent or guardian of
the minor is not in need of treatment or rehabilitation.
391. At any hearing to terminate jurisdiction over a dependent
child who has reached the age of majority the county welfare
department shall do both of the following:
(a) Ensure that the child is present in court, unless the child
does not wish to appear in court, or document efforts by the county
welfare department to locate the child when the child is not
available.
(b) Submit a report verifying that the following information,
documents, and services have been provided to the child:
(1) Written information concerning the child's dependency case,
including his or her family history and placement history, the
whereabouts of any siblings under the jurisdiction of the juvenile
court, unless the court determines that sibling contact would
jeopardize the safety or welfare of the sibling, directions on how to
access the documents the child is entitled to inspect under Section
827, and the date on which the jurisdiction of the juvenile court
would be terminated.
(2) The following documents, where applicable: social security
card, certified birth certificate, identification card, as described
in Section 13000 of the Vehicle Code, death certificate of parent or
parents, and proof of citizenship or residence.
(3) Assistance in completing an application for Medi-Cal or
assistance in obtaining other health insurance; referral to
transitional housing, if available, or assistance in securing other
housing; and assistance in obtaining employment or other financial
support.
(4) Assistance in applying for admission to college or to a
vocational training program or other educational institution and in
obtaining financial aid, where appropriate.
(5) Assistance in maintaining relationships with individuals who
are important to the child, based on the child's best interests.
(c) The court may continue jurisdiction if it finds that the
county welfare department has not met the requirements of subdivision
(b) and that termination of jurisdiction would be harmful to the
best interests of the child. If the court determines that continued
jurisdiction is warranted pursuant to this section, the continuation
shall only be ordered for that period of time necessary for the
county welfare department to meet the requirements of subdivision
(b). This section shall not be construed to limit the discretion of
the juvenile court to continue jurisdiction for other reasons. The
court may terminate jurisdiction if the county welfare department has
offered the required services, and the child either has refused the
services or, after reasonable efforts by the county welfare
department, cannot be located.
(d) The Judicial Council shall develop and implement standards,
and develop and adopt appropriate forms, necessary to implement this
section.
395. A judgment in a proceeding under Section 300 may be appealed
from in the same manner as any final judgment, and any subsequent
order may be appealed from as from an order after judgment; but no
such order or judgment shall be stayed by the appeal, unless, pending
the appeal, suitable provision is made for the maintenance, care,
and custody of the person alleged or found to come within the
provisions of Section 300, and unless the provision is approved by an
order of the juvenile court. The appeal shall have precedence over
all other cases in the court to which the appeal is taken.
A judgment or subsequent order entered by a referee shall become
appealable whenever proceedings pursuant to Section 252, 253, or 254
have become completed or, if proceedings pursuant to Section 252,
253, or 254 are not initiated, when the time for initiating the
proceedings has expired.
An appellant unable to afford counsel, shall be provided a free
copy of the transcript in any appeal.
The record shall be prepared and transmitted immediately after
filing of the notice of appeal, without advance payment of fees. If
the appellant is able to afford counsel, the county may seek
reimbursement for the cost of the transcripts under subdivision (c)
of Section 68511.3 of the Government Code as though the appellant had
been granted permission to proceed in forma pauperis.
396. It is the policy of the Legislature that foster care should be
a temporary method of care for the children of this state, that
children have a right to a normal home life free from abuse, that
reunification with the natural parent or parents or another alternate
permanent living situation such as adoption or guardianship is more
suitable to a child's well-being than is foster care, that this state
has a responsibility to attempt to ensure that children are given
the chance to have happy and healthy lives, and that, to the extent
possible, the current practice of moving children receiving foster
care services from one foster home to another until they reach the
age of majority should be discontinued.
397. In order to carry out the policy stated in Section 396, each
county welfare department or probation department shall report to the
State Department of Social Services, in the frequency and format
determined by the department, foster care characteristic data and
care information deemed essential by the department to establish a
foster care information system. The report shall include, but not be
limited to, elements that identify the factors necessitating foster
care placement, the appropriateness of the placement, and the case
goal or objective such as reunification, adoption, guardianship, or
long-term foster care placement.
398. The department shall report to the Speaker of the Assembly and
the Senate Rules Committee on the current status of children placed
in foster care. The report shall be submitted on October 1, 1981,
and shall include, in addition to the current status of children in
foster care, an analysis of foster care service plans in relation to
the policy set forth in Section 396.
399. Any minor being considered for placement in a foster home
shall have the right to make a brief statement to the court making a
decision on placement. The court may disregard any preferences
expressed by the minor. The minor's right to make a statement shall
not be limited to the initial placement, but shall continue for any
proceedings concerning continued placement or a decision to return to
parental custody.
400. Any county may institute a program of advocates for pupils in
foster care placement. A participating county shall be responsible
for the nonfederal costs of implementing the program.
401. The program shall utilize educational advocates to assist
children in foster care through the educational system. To the
extent possible, an advocate shall reflect the same racial or ethnic
identification as the pupil being assisted. The educational
advocates shall be required to comply with all statutory and
regulatory provisions regarding standards of confidentiality that are
applicable to children of schoolage who have been placed in foster
care. The responsibilities of an advocate shall include at least the
following duties:
(a) Facilitating the school enrollment of pupils in foster care.
(b) Locating a pupil's transcripts, immunization and school health
records, individual education plans, and having these documents sent
to the school to which the child is applying for enrollment, and to
the department so that the information can be included in the child's
health and education passport.
(c) Educating foster parents regarding how to enroll the pupil in
school and what educational services are available.
402. An advocate and a county participating in this program shall
be held harmless by the state when acting in their official capacity
except for acts or omissions that are found to have been wanton,
reckless, or malicious.
403. An advocate shall not be assigned to assist any minor in
foster care placement who has been appointed a surrogate parent.
404. Any school district that has a foster youth services program
shall not be eligible to participate in the program authorized by
this chapter.