Code Section Group

Family Code - FAM

DIVISION 12. PARENT AND CHILD RELATIONSHIP [7500 - 7961]

  ( Division 12 enacted by Stats. 1992, Ch. 162, Sec. 10. )

PART 4. FREEDOM FROM PARENTAL CUSTODY AND CONTROL [7800 - 7895]

  ( Part 4 enacted by Stats. 1992, Ch. 162, Sec. 10. )

CHAPTER 2. Circumstances Where Proceeding May Be Brought [7820 - 7827]
  ( Chapter 2 enacted by Stats. 1992, Ch. 162, Sec. 10. )

7820.
  

A proceeding may be brought under this part for the purpose of having a child under the age of 18 years declared free from the custody and control of either or both parents if the child comes within any of the descriptions set out in this chapter.

(Enacted by Stats. 1992, Ch. 162, Sec. 10. Operative January 1, 1994.)

7821.
  

A finding pursuant to this chapter shall be supported by clear and convincing evidence, except as otherwise provided.

(Amended by Stats. 2006, Ch. 838, Sec. 4. Effective January 1, 2007.)

7822.
  

(a) A proceeding under this part may be brought if any of the following occur:

(1) The child has been left without provision for the child’s identification by the child’s parent or parents.

(2) The child has been left by both parents or the sole parent in the care and custody of another person for a period of six months without any provision for the child’s support, or without communication from the parent or parents, with the intent on the part of the parent or parents to abandon the child.

(3) One parent has left the child in the care and custody of the other parent for a period of one year without any provision for the child’s support, or without communication from the parent, with the intent on the part of the parent to abandon the child.

(b) The failure to provide identification, failure to provide support, or failure to communicate is presumptive evidence of the intent to abandon. If the parent or parents have made only token efforts to support or communicate with the child, the court may declare the child abandoned by the parent or parents. In the event that a guardian has been appointed for the child, the court may still declare the child abandoned if the parent or parents have failed to communicate with or support the child within the meaning of this section.

(c) If the child has been left without provision for the child’s identification and the whereabouts of the parents are unknown, a petition may be filed after the 120th day following the discovery of the child and citation by publication may be commenced. The petition may not be heard until after the 180th day following the discovery of the child.

(d) If the parent has agreed for the child to be in the physical custody of another person or persons for adoption and has not signed an adoption placement agreement pursuant to Section 8801.3, a consent to adoption pursuant to Section 8814, or a relinquishment to a licensed adoption agency pursuant to Section 8700, evidence of the adoptive placement shall not in itself preclude the court from finding an intent on the part of that parent to abandon the child. If the parent has placed the child for adoption pursuant to Section 8801.3, consented to adoption pursuant to Section 8814, or relinquished the child to a licensed adoption agency pursuant to Section 8700, and has then either revoked the consent or rescinded the relinquishment, but has not taken reasonable action to obtain custody of the child, evidence of the adoptive placement shall not in itself preclude the court from finding an intent on the part of that parent to abandon the child.

(e) Notwithstanding subdivisions (a), (b), (c), and (d), if the parent of an Indian child has transferred physical care, custody, and control of the child to an Indian custodian, that action shall not be deemed to constitute an abandonment of the child, unless the parent manifests the intent to abandon the child by either of the following:

(1) Failing to resume physical care, custody, and control of the child upon the request of the Indian custodian provided that, if the Indian custodian is unable to make a request because the parent has failed to keep the Indian custodian apprised of the parent’s whereabouts and the Indian custodian has made reasonable efforts to determine the whereabouts of the parent without success, there may be evidence of intent to abandon.

(2) Failing to substantially comply with any obligations assumed by the parent in the agreement with the Indian custodian despite the Indian custodian’s objection to the noncompliance.

(Amended by Stats. 2019, Ch. 115, Sec. 100. (AB 1817) Effective January 1, 2020.)

7823.
  

(a) A proceeding under this part may be brought if all of the following requirements are satisfied:

(1) The child has been neglected or cruelly treated by either or both parents. A finding that a parent committed severe sexual abuse, as described in paragraph (6) of subdivision (b) of Section 361.5 of the Welfare and Institutions Code, against the child shall be prima facie evidence that the parent has neglected or cruelly treated the child within the meaning of this subdivision.

(2) The child has been a dependent child of the juvenile court under any subdivision of Section 300 of the Welfare and Institutions Code and the parent or parents have been deprived of the child’s custody for one year before the filing of a petition pursuant to this part.

(b) Physical custody by the parent or parents for insubstantial periods of time does not interrupt the running of the one-year period.

(Amended by Stats. 2018, Ch. 83, Sec. 1. (AB 2792) Effective January 1, 2019.)

7824.
  

(a) “Disability” as used in this section means any physical or mental incapacity which renders the parent or parents unable to care for and control the child adequately.

(b) A proceeding under this part may be brought where all of the following requirements are satisfied:

(1) The child is one whose parent or parents (A) suffer a disability because of the habitual use of alcohol, or any of the controlled substances specified in Schedules I to V, inclusive, of Division 10 (commencing with Section 11000) of the Health and Safety Code, except when these controlled substances are used as part of a medically prescribed plan, or (B) are morally depraved.

(2) The child has been a dependent child of the juvenile court, and the parent or parents have been deprived of the child’s custody continuously for one year immediately before the filing of a petition pursuant to this part.

(c) Physical custody by the parent or parents for insubstantial periods of time does not interrupt the running of the one-year period.

(Enacted by Stats. 1992, Ch. 162, Sec. 10. Operative January 1, 1994.)

7825.
  

(a) A proceeding under this part may be brought where both of the following requirements are satisfied:

(1) The child is one whose parent or parents are convicted of a felony.

(2) The facts of the crime of which the parent or parents were convicted are of such a nature so as to prove the unfitness of the parent or parents to have the future custody and control of the child. In making a determination pursuant to this section, the court may consider the parent’s criminal record prior to the felony conviction to the extent that the criminal record demonstrates a pattern of behavior substantially related to the welfare of the child or the parent’s ability to exercise custody and control regarding the child.

(b) The mother of a child may bring a proceeding under this part against the father of the child, where the child was conceived as a result of an act in violation of Section 261 of the Penal Code, and where the father was convicted of that violation. For purposes of this subdivision, there is a conclusive presumption that the father is unfit to have custody or control of the child.

(Amended by Stats. 2019, Ch. 115, Sec. 101. (AB 1817) Effective January 1, 2020.)

7826.
  

A proceeding under this part may be brought where both of the following requirements are satisfied:

(a) The child is one whose parent or parents have been declared by a court of competent jurisdiction, wherever situated, to be developmentally disabled or mentally ill.

(b) In the state or country in which the parent or parents reside or are hospitalized, the Director of State Hospitals or the Director of Developmental Services, or their equivalent, if any, and the executive director of the hospital, if any, of which the parent or parents are inmates or patients, certify that the parent or parents so declared to be developmentally disabled or mentally ill will not be capable of supporting or controlling the child in a proper manner.

(Amended by Stats. 2012, Ch. 440, Sec. 6. (AB 1488) Effective September 22, 2012.)

7827.
  

(a) “Mentally disabled” as used in this section means that a parent or parents suffer a mental incapacity or disorder that renders the parent or parents unable to care for and control the child adequately.

(b) A proceeding under this part may be brought if the child is one whose parent or parents are mentally disabled and are likely to remain so in the foreseeable future.

(c) Except as provided in subdivision (d), the evidence of any two experts, each of whom shall be a physician and surgeon, certified either by the American Board of Psychiatry and Neurology or under Section 6750 of the Welfare and Institutions Code, a licensed psychologist who has a doctoral degree in psychology and at least five years of postgraduate experience in the diagnosis and treatment of emotional and mental disorders, is required to support a finding under this section. In addition to this requirement, the court shall have the discretion to call a licensed marriage and family therapist, a licensed professional clinical counselor, or a licensed clinical social worker, either of whom shall have at least five years of relevant postlicensure experience, in circumstances in which the court determines that this testimony is in the best interest of the child and is warranted by the circumstances of the particular family or parenting issues involved. However, the court may not call a licensed marriage and family therapist, licensed professional clinical counselor, or licensed clinical social worker pursuant to this section who is the adoption service provider, as defined in Section 8502, of the child who is the subject of the petition to terminate parental rights.

(d) If the parent or parents reside in another state or in a foreign country, the evidence required by this section may be supplied by the affidavits of two experts, each of whom shall be either of the following:

(1) A physician and surgeon who is a resident of that state or foreign country, and who has been certified by a medical organization or society of that state or foreign country to practice psychiatric or neurological medicine.

(2) A licensed psychologist who has a doctoral degree in psychology and at least five years of postgraduate experience in the diagnosis and treatment of emotional and mental disorders and who is licensed in that state or authorized to practice in that country.

(e) If the rights of a parent are sought to be terminated pursuant to this section, and the parent does not have an attorney, the court shall appoint an attorney for the parent pursuant to Article 4 (commencing with Section 7860) of Chapter 3, whether or not a request for the appointment is made by the parent.

(Amended by Stats. 2018, Ch. 389, Sec. 13. (AB 2296) Effective January 1, 2019.)

FAMFamily Code - FAM