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AB-549 Nonminor dependents.(2021-2022)



Current Version: 04/08/21 - Amended Assembly

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AB549:v98#DOCUMENT

Amended  IN  Assembly  April 08, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 549

Introduced by Assembly Member Gipson
(Coauthors: Assembly Members Santiago Davies, Santiago, and Stone)

February 10, 2021

An act to amend, repeal, and add Section 355 amend Section 358 of the Welfare and Institutions Code, relating to nonminor dependents.


LEGISLATIVE COUNSEL'S DIGEST


AB 549, as amended, Gipson. Nonminor dependents.
Existing law establishes the jurisdiction of the juvenile court, which may adjudge a petition for a child to be a dependent of the court under certain circumstances, including when the child is abused, a parent or guardian fails to adequately supervise or protect the child, as specified, or a parent or guardian fails to provide the child with adequate food, clothing, shelter, or medical treatment. Existing law requires the juvenile court, after finding that a child is within the dependency jurisdiction of the juvenile court, to hear evidence on the question of the proper disposition to be made of the child.

Existing law authorizes the juvenile court to retain jurisdiction over a person who is found to be a ward or a dependent child of the juvenile court until the ward or dependent child attains 21 years of age. Existing law also authorizes a nonminor who has not yet attained 21 years of age and who exited foster care at or after the age of majority to petition the court to resume dependency jurisdiction or to assume transition jurisdiction, as described.

Under this bill, a court would not be precluded from finding that a minor is a dependent of the court on the sole basis that the minor will turn 18 years of age prior to disposition of the petition. The bill would require the court to report on the total number of cases pursuant to that provision, as specified. The bill would repeal these provisions January 1, 2023.

Existing law also requires, for youth who were found to be within the jurisdiction of the juvenile court prior to attaining 18 years of age and who were continuously detained, but who attained 18 years of age prior to the juvenile court holding a dispositional hearing, the court to hold a dispositional hearing if the youth provides informed consent. Existing law requires, for certain youth subject to these provisions who choose not to remain in foster care, the court to set a hearing to terminate jurisdiction.
This bill would make youth eligible for a dispositional hearing pursuant to these provisions if, instead of being continuously detained, the youth was continuously subject to a detention order. The bill would also clarify that, for youth subject to those provisions who choose not to remain in foster care, the court is required to set a hearing to terminate dependency jurisdiction and, if the court terminates dependency jurisdiction, the court is required to retain general jurisdiction.
This bill would also authorize the court, until January 1, 2023, to hold a dispositional hearing for a youth if, as a result of court closures or delays due to the COVID-19 pandemic, the court was unable to hold a jurisdictional hearing for the youth prior to the youth turning 18 years of age, but the youth has continuously been subject to a detention order and placement and care of the youth has been vested with the county child welfare department.
This bill would require the Judicial Council, on or before March 30, 2023, to submit a report related to above-described provisions to the chairs of the Human Services and Judiciary Committees in the Senate and the Assembly.
By imposing additional duties on county employees, 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.

 (a) It is the intent of the Legislature in enacting this act to do both of the following:

(a)

(1) To ensure that a youth who was subject to a foster care order, including a detention order made pursuant to subdivision (c) of Section 319 of the Welfare and Institutions Code, and who has not yet been adjudged a dependent or ward of the juvenile court, on their 18th birthday is able to access extended foster care during the COVID-19 pandemic, considering the impacts the pandemic has placed on the dependency court and child welfare system.

(b)

(2) To ensure that data is collected regarding the impact of COVID-19 on youth in trying to access the child welfare system.
(b) It is the intent of the Legislature that, in consultation with stakeholders, there will be an evaluation of the total caseload resulting from the enactment of this act and the appropriateness of making subdivision (d) of Section 358 of the Welfare and Institutions Code inoperative on January 1, 2023, and consideration be given to extending or eliminating that inoperative date during budget discussions for the 2022–23 fiscal year.
SEC. 2.Section 355 of the Welfare and Institutions Code is amended to read:
355.

(a)At the jurisdictional hearing, the court shall first consider only the question whether the minor is a person described in 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 in Section 300. Objections that could have been made to evidence introduced shall be deemed to have been made by a 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 an 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 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 Article 6 (commencing with Section 300) to Article 12 (commencing with Section 385), inclusive.

(2)The preparer of the social study shall be made available for cross-examination upon a timely request by a 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 a 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 12 years of age who is the subject of the jurisdictional hearing. However, the hearsay statement of a minor under 12 years of age 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 4991) 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 25 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 does not limit the right of a 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.

(e)(1)As a result of the impacts of the COVID-19 pandemic, the court is not precluded from finding that the minor is a person described in Section 300 on the sole basis that the minor will turn 18 years of age prior to the disposition of the petition. In these limited cases, the court may find that it is in the person’s best interest to be declared a nonminor dependent.

(2)The court shall report to the chairs of the relevant policy committees in the Senate and the Assembly on the total number of cases that this subdivision was applied, and the minimum, maximum, and average number of days from the detention hearing to the jurisdictional hearing, if known.

(f)This section shall remain in effect only until January 1, 2023, and as of that date is repealed.

SEC. 3.Section 355 is added to the Welfare and Institutions Code, to read:
355.

(a)At the jurisdictional hearing, the court shall first consider only the question whether the minor is a person described in 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 in Section 300. Objections that could have been made to evidence introduced shall be deemed to have been made by a 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 an 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 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 Article 6 (commencing with Section 300) to Article 12 (commencing with Section 385), inclusive.

(2)The preparer of the social study shall be made available for cross-examination upon a timely request by a 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 a 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 12 years of age who is the subject of the jurisdictional hearing. However, the hearsay statement of a minor under 12 years of age 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 4991) 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 25 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 does not limit the right of a 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.

(e)This section shall become operative on January 1, 2023.

SEC. 2.

 Section 358 of the Welfare and Institutions Code is amended to read:

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 their parental rights may be terminated within the timeframes specified by law.
(b) (1) 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.
(2) Whenever a child is removed from a parent’s or guardian’s custody, the court shall make a finding as to whether the social worker has exercised due diligence in conducting the investigation, as required pursuant to paragraph (1) of subdivision (e) of Section 309, to identify, locate, and notify the child’s relatives, including both maternal and paternal relatives.
(3) When making the determination required pursuant to paragraph (2), the court may consider, among other examples of due diligence, the extent to which the social worker has complied with paragraph (1) of subdivision (e) of Section 309, and has done any of the following:
(A) Asked the child, in an age-appropriate manner and consistent with the child’s best interest, about their relatives.
(B) Obtained information regarding the location of the child’s relatives.
(C) Reviewed the child’s case file for any information regarding the child’s relatives.
(D) Telephoned, emailed, or visited all identified relatives.
(E) Asked located relatives for the names and locations of other relatives.
(F) Used internet search tools to locate relatives identified as supports.
(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.
(d) (1) The court shall hold a dispositional proceeding for a youth 18 years of age if both of the following requirements are met:
(A) The youth was found to be a minor described in Section 300 at a hearing pursuant to Section 355 prior to the youth attaining 18 years of age, and was continuously detained subject to a detention order pursuant to subdivision (c) of Section 319.
(B) The youth has provided informed consent to the dispositional proceeding.
(2) For purposes of this subdivision, the fact that a youth has attained 18 years of age shall not be cause to relieve counsel appointed pursuant to Section 317.
(3) A dispositional proceeding for a youth as described in paragraph (1) shall be held within 30 days of the date of the finding pursuant to Section 355.
(4) At the dispositional proceeding, the court shall determine by clear and convincing evidence if at least one of the conditions described in subdivision (c) of Section 361 existed immediately prior to the youth attaining 18 years of age.
(5) (A) If the youth does not provide informed consent to the dispositional proceeding, or the court does not find the criteria described in paragraph (4), the court shall vacate the temporary orders made under Section 319 and dependency or general jurisdiction shall not be retained.
(B) If the court finds that the youth meets the criteria described in paragraph (4) but chooses not to remain in foster care, the court shall set a hearing for termination of dependency jurisdiction pursuant to Section 391 within 30 days. If the court terminates dependency jurisdiction for a youth described in this subparagraph, the court shall retain general jurisdiction pursuant to Section 303.
(6) For purposes of the definition of “nonminor dependent” pursuant to subdivision (v) of Section 11400, an order for foster care placement made at disposition pursuant to this subdivision shall be treated as though the nonminor attained 18 years of age while under an order of foster care placement by the juvenile court.
(7) Implementation of this subdivision is subject to federal approval of the state plan amendment made under Title IV-E of the federal Social Security Act (42 U.S.C. Sec. 670 et seq.), and shall be operative as of the date of federal approval.
(8) On or before July 1, 2020, the Judicial Council shall amend or adopt rules of court, and shall develop or amend appropriate forms, as necessary to implement this subdivision.
(e) (1) Notwithstanding any other law, if, as a result of court closures or delays due to the COVID-19 pandemic, the court was unable to hold a jurisdictional hearing pursuant to Section 355 for a youth prior to the youth turning 18 years of age, but the youth has continuously been subject to a detention order pursuant to subdivision (c) of Section 319 and placement and care of the youth has been vested with the county child welfare department pursuant to subdivision (g) of Section 319, the court may hold a dispositional hearing pursuant to this section. Paragraphs (2), (4), (5), and (6) of subdivision (d) shall apply to a dispositional hearing held pursuant to this subdivision. In these limited cases, the court may find that it is in the youth’s best interest to be declared a nonminor dependent.
(2) This subdivision shall be inoperative on January 1, 2023.
(f) The Judicial Council shall, no later than March 30, 2023, report to the chairs of the Human Services and Judiciary Committees in the Senate and the Assembly the total number of cases in which subdivision (d) or (e) was applied, and the minimum, maximum, and average number of days from the detention hearing to the dispositional hearing, if known.

SEC. 4.SEC. 3.

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