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AB-260 Guardianships.(2021-2022)

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Date Published: 01/15/2021 09:00 PM
AB260:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 260


Introduced by Assembly Member Stone

January 15, 2021


An act to amend Section 1513 of the Probate Code, and to amend Sections 331, 360, 366.4, and 11363 of the Welfare and Institutions Code, relating to guardianship.


LEGISLATIVE COUNSEL'S DIGEST


AB 260, as introduced, Stone. Guardianships.
Existing law establishes the jurisdiction of the juvenile court, under which a minor may be adjudged to be a dependent of the court if the minor has been abused or neglected, as specified. Other existing law, the Guardianship-Conservatorship Law, authorizes a probate court, upon hearing of a petition by a parent, relative, or other person, to appoint a guardian of a minor in accordance with specified provisions of law governing the custody of a minor child. Existing law authorizes a court hearing a guardianship petition, if the proposed ward is or may be abused or neglected, to refer the matter to the local child welfare services agency to initiate an investigation to determine whether proceedings in juvenile court should be commenced.
This bill would require the court to have good cause to waive the investigation and would prohibit the guardianship proceedings from being completed until the investigation is completed and a report is provided to the juvenile court.
Existing law requires a proceeding in the juvenile court to declare a child to be a dependent child of the court to be commenced by a social worker’s filing of a petition with the court. Under existing law, if a person applies to a social worker to commence juvenile court proceedings and the social worker fails to file a petition within 3 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 the social worker to commence juvenile court proceedings.
If the probate court has referred the matter to juvenile court, this bill would require the juvenile court to review the decision of a social worker not to file a petition within 3 weeks of the referral.
Existing law authorizes a juvenile court, if the court finds that the child is abused or neglected, and the parent has advised the court that the parent is not interested in family maintenance or family reunification services, in addition to or in lieu of adjudicating the child a dependent child of the court, to order a legal guardianship and appoint a legal guardian, as specified. Existing law establishes the state-funded Kinship Guardianship Assistance Payment Program (Kin-GAP), which provides aid on behalf of eligible children who are placed in the home of a relative guardian. Existing law requires aid in the form of state-funded Kin-GAP to be provided on behalf of any child under 18 years of age and to any eligible youth under 19 years of age who has had a kinship guardianship established, as described above, and who meets other requirements, including that the child or youth has been adjudicated a dependent child or ward of the juvenile court, has been residing for at least 6 consecutive months in the approved home of the prospective relative guardian, and has had the dependency jurisdiction or wardship terminated, as specified.
This bill would require the state-funded Kin-GAP aid to be provided on behalf of any child under 18 years of age and to any eligible youth under 21 years of age who has had a kinship guardianship established as described above. The bill would, for purposes of providing this aid, eliminate the requirements that the child has also been adjudicated a dependent child or ward of the juvenile court, has been residing for at least 6 consecutive months in the approved home of the prospective relative guardian, and has had the dependency jurisdiction or wardship terminated, as specified. The bill would repeal obsolete cross-references and make other technical changes. By imposing a higher level of service on county officials, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 1513 of the Probate Code is amended to read:

1513.
 (a) Unless waived by the court, court for good cause, a court investigator, probation officer, or domestic relations investigator shall make an investigation and file with the court a report and recommendation concerning each proposed guardianship of the person or guardianship of the estate. Investigations where the proposed guardian is a relative shall be made by a court investigator. Investigations where the proposed guardian is a nonrelative shall be made by the county agency designated to investigate potential dependency. The report of the investigation for the a guardianship of the person shall include, but need not be limited to, an investigation and a discussion of all of the following:
(1) A social history of the proposed guardian.
(2) A social history of the proposed ward, including, to the extent feasible, an assessment of any identified developmental, emotional, psychological, or educational needs of the proposed ward and the capability of the petitioner proposed guardian to meet those needs.
(3) The relationship of the proposed ward to the proposed guardian, including the duration and character of the relationship, where applicable, the circumstances whereby under which the proposed guardian took physical custody of the proposed ward was acquired by the guardian, ward, and a statement of the proposed ward’s attitude concerning the proposed guardianship, unless the statement of the attitude is affected by the proposed ward’s developmental, physical, or emotional condition. condition prevents the proposed ward from forming or stating an attitude concerning the proposed guardianship.
(4) The anticipated duration of the guardianship and the plans of both natural anticipated by the parents and the proposed guardian for the and the plans of each parent and the proposed guardian to provide a stable and permanent home for the child. The court may waive this requirement for cases involving relative guardians.
(b) If the investigative report indicates that the proposed ward is or may be described by Section 300 of the Welfare and Institutions Code, the court may refer the matter to the local child welfare services agency to initiate an investigation of the referral pursuant to Sections 328 and 329 of the Welfare and Institutions Code and to report the findings of that investigation to the probate court. Pending completion of the investigation, the court may take any reasonable steps it deems appropriate to protect the child’s safety, including, but not limited to, appointment of a temporary guardian or issuance of a temporary restraining order. If dependency proceedings are initiated, the guardianship proceedings shall be stayed in accordance with Section 304 of the Welfare and Institutions Code. Nothing in this section shall affect the applicability of Section 16504 or 16506 of the Welfare and Institutions Code. If a dependency proceeding is not initiated, the probate court shall retain jurisdiction to hear the guardianship matter.
(1) Guardianship proceedings shall not be completed until the investigation required by Sections 328 and 329 of the Welfare and Institutions Code is completed and a report is provided to the juvenile court for review pursuant to subdivision (b) of Section 331 of the Welfare and Institutions Code.
(2) Pending completion of the child welfare investigation, the probate court may take any reasonable steps it deems appropriate to protect the child’s safety, including, but not limited to, appointing a temporary guardian or issuing a temporary restraining order.
(3) Appointment of a temporary guardian by the probate court does not limit the authority of the juvenile court to order the commencement of juvenile court proceedings under Section 331 of the Welfare and Institutions Code.
(4) If dependency proceedings are initiated, the guardianship proceedings shall be stayed in accordance with Section 304 of the Welfare and Institutions Code. This section does not affect the applicability of Section 16504 or 16506 of the Welfare and Institutions Code. If a dependency proceeding is not initiated, the probate court shall retain jurisdiction to hear the guardianship matter.
(c) Prior to ruling on the petition for guardianship, the court shall read and consider all reports submitted pursuant to this section, which shall be reflected in the minutes or stated on the record. Any A person who reports to the court pursuant to this section may be called and examined by any party to the proceeding.
(d) All reports authorized by this section are confidential and shall only be made available to persons who have been served in the proceedings or their attorneys. The clerk of the court shall make provisions to limit access to the reports exclusively to persons entitled to receipt. The reports shall be made available to all parties entitled to receipt no less than three court days before the hearing on the guardianship petition.
(e) For the purpose of writing either report authorized by this section, the person making the investigation and report shall have access to the proposed ward’s school records, probation records, and public and private social services records, and to an oral or written summary of the proposed ward’s medical records and psychological records prepared by any physician, psychologist, or psychiatrist who made or who is maintaining those records. The physician, psychologist, or psychiatrist shall be available to clarify information regarding these records pursuant to the investigator’s responsibility to gather and provide information for the court.
(f) This section does not apply to guardianships resulting from a permanency plan for a dependent child pursuant to Section 366.26 of the Welfare and Institutions Code.
(g) For purposes of this section, a “relative” means a person who is a spouse, parent, stepparent, brother, sister, stepbrother, stepsister, half-brother, half-sister, uncle, aunt, niece, nephew, first cousin, or any person denoted by the prefix “grand” or “great,” or the spouse of any of these persons, even after the marriage has been terminated by death or dissolution.
(h) In an Indian child custody proceeding, any person making an investigation and report shall consult with the Indian child’s tribe and include in the report information provided by the tribe.
(i) It is the intent of the Legislature that the guardianship laws in this code and the juvenile court laws in the Welfare and Institutions Code operate together as a cohesive statutory structure that ensures all cases referred by the probate court for a child welfare investigation are evaluated by the dependency court without limiting the probate court’s ability to take immediate action to protect the child during the period of the investigation and evaluation. The purpose of this statutory structure is to ensure the protection of every child’s health, safety, and welfare and to provide due process to every child, parent, and family.
(j) On or before September 1, 2022, the Judicial Council shall develop or revise any rules necessary to implement this section.

SEC. 2.

 Section 331 of the Welfare and Institutions Code is amended to read:

331.
 When any (a) If a 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 the social worker to commence juvenile court proceedings.
(b) If the probate court has referred the matter pursuant to Section 1513 of the Probate Code, and the agency has failed to file a petition to commence juvenile court proceedings within three weeks of the referral, the juvenile court shall, without further referral or application, review the decision of the social worker not to file a petition. The court may either affirm the decision of the social worker or order the social worker to commence juvenile court proceedings.
(1) The appointment of a temporary probate guardian shall not limit the authority of the juvenile court to order commencement of dependency proceedings or to hear and determine a petition alleging that the child is described by Section 300.
(2) The passage of time from the filing of the petition for guardianship to review by the juvenile court pursuant to this section, shall not limit the authority of the juvenile court to order the social worker to commence proceedings or to make a jurisdiction finding pursuant to Section 356.
(3) If the juvenile court does not order the social worker to commence juvenile court proceedings, the juvenile court shall, within five days of making the decision, transmit the decision, in writing, to the probate court. The probate court shall make a copy of the decision available to the persons who have been served in the guardianship proceedings or their attorneys.

SEC. 3.

 Section 360 of the Welfare and Institutions Code is amended to read:

360.
 (a) It is the intent of the Legislature to ensure that children who must be separated from a parent as a result of abuse or neglect have access to funding any time they are placed in a guardianship by the juvenile court.
(b) It is further the intent of the Legislature that permanent placement of a child is not delayed solely to ensure that the child will be able to receive critical funding.
(c) After receiving and considering the evidence on the proper disposition of the case, the juvenile court may enter judgment as follows:

(a)

(1) Notwithstanding any other provision of law, if the court finds that the child is a person described by Section 300 and the parent has advised the court that the parent is not interested in family maintenance or family reunification services, it may, in addition to or in lieu of adjudicating the child a dependent child of the court, order a legal guardianship, appoint a legal guardian, and issue letters of guardianship, if the court determines that a guardianship is in the best interest of the child, provided the parent and the child agree to the guardianship, unless the 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 not be provided as a result of the establishment of a guardianship. The proceeding for the appointment of a guardian shall be in the juvenile court.

Any

(2) An application for termination of guardianship shall be filed in juvenile court in a form as may be developed by the Judicial Council pursuant to Section 68511 of the Government Code. Sections 366.4 and 388 shall apply to this order of guardianship.

No

(3) A person shall not be appointed a legal guardian under this section until an assessment as specified in subdivision (g) of Section 361.5 is read and considered by the court and reflected in the minutes of the court.

On

(4) (A) On and after the date that the director executes a declaration pursuant to Section 11217, if the court appoints an approved relative caregiver as the child’s legal guardian, the child has been in the care of that approved relative for a period of six consecutive months under a voluntary placement agreement, and the child otherwise meets the conditions for federal financial participation, the child shall be eligible for aid under the Kin-GAP Program as provided in Article 4.7 (commencing with Section 11385) of Chapter 2. The nonfederally eligible child placed with an approved relative caregiver who is appointed as the child’s legal guardian shall be eligible for aid under the state-funded Kin-GAP Program, as provided for in Article 4.5 (commencing with Section 11360) of Chapter 2.
(B) A child placed with a relative caregiver who is appointed as the child’s legal guardian pursuant to this section shall be eligible for aid under the state-funded Kin-GAP Program, as provided for in Article 4.5 (commencing with Section 11360) of Chapter 2.

The

(5) A person responsible for preparing the assessment may be called and examined by any party to the guardianship proceeding.

(b)

(d) 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)

(e) 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) (d) 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). (f).

(d)

(f) If the court finds that the child is a person described by Section 300, it may order and adjudge the child to be a dependent child of the court.

SEC. 4.

 Section 366.4 of the Welfare and Institutions Code is amended to read:

366.4.
 (a)Any A minor for whom a guardianship has been established resulting from the selection or implementation of a permanency plan pursuant to Section 366.26, or for whom a related guardianship has been established pursuant to Section 360, or, on and after the date that the director executes a declaration pursuant to Section 11217, a nonminor who is receiving Kin-GAP payments pursuant to Section 11363 or 11386, or, on or after January 1, 2012, a nonminor former dependent child of the juvenile court who is receiving AFDC-FC benefits pursuant to Section 11405, 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 does 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 guardianships under Part 4 (commencing with Section 2100) of Division 4 of the Probate Code govern so far insofar as they are applicable to like situations.

(b)Nonrelated legal guardians of the person of a guardianship pursuant to Section 360 or 366.26 shall be exempt from the provisions of Sections 2850 and 2851 of the Probate Code.

SEC. 5.

 Section 11363 of the Welfare and Institutions Code is amended to read:

11363.
 (a) Aid in the form of state-funded Kin-GAP shall be provided under this article on behalf of any child under 18 years of age and to any eligible youth under 19 years of age, as provided in Section 11403, who satisfies all of the following conditions:
(1) Has been adjudged a dependent child of the juvenile court pursuant to Section 300, or, effective October 1, 2006, a ward of the juvenile court pursuant to Section 601 or 602.
(2) Has been residing for at least six consecutive months in the approved home of the prospective relative guardian while under the jurisdiction of the juvenile court or a voluntary placement agreement.
(3) Has had a kinship guardianship established pursuant to Section 360 or 366.26.
(4) Has had his or her their dependency jurisdiction terminated after January 1, 2000, pursuant to Section 366.3, or his or her their wardship terminated pursuant to subdivision (e) of Section 728, concurrently or subsequently to the establishment of the kinship guardianship.
(b) Aid in the form of state-funded Kin-GAP shall be provided under this article on behalf of any child under 18 years of age and to any eligible youth under 21 years of age, as provided in Section 11403, who has had a kinship guardianship established pursuant to Section 360.

(b)

(c) If the conditions specified in subdivision (a) or (b) are met and, subsequent to the termination of dependency jurisdiction, any a parent or person having an interest files with the juvenile court a petition pursuant to Section 388 to change, modify, or set aside an order of the court, Kin-GAP payments shall continue unless and until the juvenile court, after holding a hearing, orders the child removed from the home of the guardian, terminates the guardianship, or maintains dependency jurisdiction after the court concludes the hearing on the petition filed under Section 388.

(c)

(d) A child or nonminor former dependent or ward shall be eligible for Kin-GAP payments if he or she the child or nonminor meets one of the following age criteria:
(1) He or she The child or nonminor is under 18 years of age.
(2) He or she The child or nonminor is under 21 years of age and has a physical or mental disability that warrants the continuation of assistance.
(3) Through December 31, 2011, he or she the child or nonminor satisfies the conditions of Section 11403, and on and after January 1, 2012, he or she satisfies the conditions of Section 11403.01.
(4) He or she The child or nonminor satisfies the conditions as described in subdivision (d). (e).

(d)

(e) Commencing January 1, 2012, state-funded Kin-GAP payments shall continue for youths who have attained 18 years of age and who are under 19 years of age, if they reached 16 years of age before the Kin-GAP negotiated agreement payments commenced, and as described in Section 10103.5. Effective January 1, 2013, Kin-GAP payments shall continue for youths who have attained 18 years of age and are under 20 years of age, if they reached 16 years of age before the Kin-GAP negotiated agreement payments commenced, and as described in Section 10103.5. Effective January 1, 2014, Kin-GAP payments shall continue for youths who have attained 18 years of age and are under 21 years of age, if they reached 16 years of age before the Kin-GAP negotiated agreement payments commenced. To be eligible for continued payments, the youth shall satisfy one or more of the conditions specified in paragraphs (1) to (5), inclusive, of subdivision (b) of Section 11403.

(e)

(f) (1) Termination of the guardianship with a kinship guardian shall terminate eligibility for Kin-GAP unless the conditions in Section 11403 apply. However, if an alternate guardian or coguardian is appointed pursuant to Section 366.3 who is also a kinship guardian, the alternate or coguardian shall be entitled to receive Kin-GAP on behalf of the child pursuant to this article. A new period of six months of placement with the alternate guardian or coguardian shall not be required if that alternate guardian or coguardian has been assessed pursuant to Section 361.3, subdivision (a) of Section 361.4, and paragraph (2), and the court terminates dependency jurisdiction. If a nonminor former dependent is receiving Kin-GAP after 18 years of age and the nonminor former dependent’s former guardian dies, the nonminor former dependent may petition the court for a hearing pursuant to Section 388.1.
(2) (A) In addition to the state-level criminal records check described in paragraph (2) of subdivision (a) of Section 361.4, the county welfare department shall require each prospective alternate guardian or coguardian, and any other person over 18 years of age living in the home, to be fingerprinted, and shall secure from an appropriate law enforcement agency any criminal record of that person to determine whether the person has ever been convicted of a crime other than a minor traffic violation.
(B) If the criminal records check indicates that the prospective alternate guardian or coguardian has been convicted of an offense described in subparagraph (A) of paragraph (2) of subdivision (g) of Section 1522 of the Health and Safety Code, the case shall not be eligible for Kin-GAP funding.
(C) If the prospective alternate guardian or coguardian has been convicted of a crime other than a minor traffic violation or arrested for an offense specified in subdivision (e) of Section 1522 of the Health and Safety Code, except for the civil penalty language, the criminal background check provisions specified in subdivisions (d) to (g), inclusive, of Section 1522 of the Health and Safety Code shall apply, and an exemption shall be issued prior to issuance of any Kin-GAP funding. Exemptions from the criminal records clearance requirements set forth in this section may be granted by the county using the exemption criteria specified in subdivision (g) of Section 1522 of the Health and Safety Code and any applicable written directives or regulations adopted by the department.
(3) A prospective alternate guardian or coguardian shall not be required to be approved as a resource family pursuant to Section 16519.5 for the sole purpose of receiving Kin-GAP funding on behalf of an eligible child in the care of the prospective alternate guardian or coguardian.

SEC. 6.

 To the extent that this act has an overall effect of increasing the costs already borne by a local agency for programs or levels of service mandated by the 2011 Realignment Legislation within the meaning of Section 36 of Article XIII of the California Constitution, it shall apply to local agencies only to the extent that the state provides annual funding for the cost increase. Any new program or higher level of service provided by a local agency pursuant to this act above the level for which funding has been provided shall not require a subvention of funds by the state or otherwise be subject to Section 6 of Article XIII B of the California Constitution.