WIC 388 Petitions: Response Reports

0300-503.41 | Revision Date: 6/14/22

Overview

This policy guide provides instructions on how to complete a response report when a Welfare and Institutions Code (WIC) 388 petition is filed, including the WIC 388(e) Extended Foster Care (EFC)The Extended Foster Care program allows a foster youth to remain in foster care and continue to receive foster care payment benefits (AFDC-FC payments) and services beyond age 18, as long as the foster youth is meeting participation requirements, living in an approved or licensed facility, and meeting other eligibility requirements. Re-Entry Hearing Report.

TABLE OF CONTENTS

Policy

Welfare and Institutions Code (WIC) Section 388

WIC 388 Petitions and Response Reports

WIC 388 Petitions Requesting a Return to Home of Parent/Petitioner

WIC 388 Petitions Involving Kin GAP Legal Guardianship

WIC 388(e) EFC Re-Entry Petition and the Hearing Process

WIC 388(e) EFC Re-Entry Hearing Reports

Procedure

Completing the Response Report to a WIC 388 Petition

Dependency Investigator (DI)/CSW Responsibilities

SCSW Responsibilities

Completing a WIC 388(e) EFC Re-Entry Hearing Report

AB 12 CSW Responsibilities

AB 12 SCSW Responsibilities

Approvals

Helpful Links

Attachments

Forms

Referenced Policy Guides

Statutes

Version Summary

This policy was updated from the 01/05/17 version to add guidance for WIC 388 petitions that request the return of a child home to a parent/petitioner.

POLICY

Welfare and Institutions Code Section (WIC) 388

The Department, any parent or other person having an interest in a child who is a dependent of the juvenile court or a nonminor dependent (NMD) -- a prior dependent for whom jurisdiction was terminated -- may petition the court to change an existing court order, showing that there has been a change of circumstances or new evidence, and that the requested change is in the best interest of the child/youth. Requested changes may include:

• Change, modify, or set aside any order of the court previously made on an open or, in certain situations, closed case. For example:
  
  
• Change from monitored visitation to unmonitored visitation
  
  
• Return a child to Home of Parent

• Terminate the jurisdiction of the court as child safety issues have been mitigated

• Reinstate parental rights for a child who has not been adopted after the passage of at least three (3) years from the date the court terminated parental rights and for whom the court has determined that adoption is no longer the permanent plan.
  
  
• Reinstate jurisdiction for a NMD [any youth under the age of twenty-one (21) whose case closed after their eighteenth (18th) birthday] or to address a closed guardianship case

In addition, any party (including the Department, any parent or other person having an interest in a child who is a dependent of the juvenile court, a nonminor dependent, or a prior dependent for whom jurisdiction was terminated), a child who is a dependent of the juvenile court, may petition the court, prior to the six (6)-month or twelve (12)-month review hearings, to terminate court-ordered family reunification services (FR).

• To terminate FR services prior to the six (6)-month review hearing that was set pursuant to WIC 366.21(e), the child must have been under three (3) years of age at the time of initial removal from the physical custody of the parents or the child is part of a sibling group where one sibling was under the age of three (3) years when the siblings were initially removed from parental custody at the same time.

• For a child(ren) who was initially removed from their parents after age three (3) years or older, a WIC 388 petition can be filed to terminate FR services prior to the twelve (12)-month review hearing that was set pursuant to WIC 366.21(f).

• A CSW should consult with County Counsel if they wish to terminate FR services to a parent prior to the eighteen (18) or twenty-four (24)-month review hearings that were set pursuant to WIC 366.22 or 366.25, respectively.

In order to request the court to terminate services early, the CSW must show that at least one (1) of the following conditions exists:

• A change of circumstance or new evidence exists that would have permitted the court to bypass FR services at disposition [pursuant to WIC 361.5(b) or 361.5(e)] justifying the recommendation to terminate FR Services.

• The action or inaction of the parent/guardian creates a substantial likelihood that reunification will not occur (e.g., no efforts to visit or contact the child for an extended period).

A child/youth may also submit a WIC 388 petition through a properly appointed guardian. In all instances, CSWs must consult with either an outstationed or trial County Counsel prior to filing a WIC 388 Petition.

WIC 388 Petitions and Responses

Prior to the hearing on a WIC 388 petition submitted by any party other than DCFS, the court will order DCFS to prepare a response to the requests for the court's consideration. The report must include an evaluation of the request based on the facts surrounding the case and information presented on the petition. The response may be in agreement or in opposition to the requested change, depending on the case-by-case analysis.

The WIC 388 Response Report is used in any case where a change in court order is made, such as:

• Change from monitored visitation to unmonitored visitation or return to Home of Parent
  
  
• Change to allow a parent previously ordered out of the family home to return
  
  
• Cases where legal guardianship has been granted and subsequently a WIC 388 petition has been filed in order to do the following:

• Terminate legal guardianship

• Request visits between parents or siblings and the child

• The legal guardian requests to move out of state with the child

• The legal guardian wants to adopt the child;

• Request FR services between the child and the parent, or;

• The parent(s) are asking to reunify with the child;

• Open and closed cases wherein a WIC 388 petition has been filed in order to do the following:

• Request a change in the Case Plan goal [e.g., terminate legal guardianship, reinstate FR/Family Maintenance (FM) services]

• Modify a visitation order
  
  
• Request any other change to the Disposition Case Plan orders (i.e., counseling, drug treatment program, weekly/random/on-demand testing)

• To terminate FR services prior to the 366.21 (e) or 366.21 (f) review hearing, etc.

• In response to an Extended Foster Care (EFC) Re-Entry request by an NMD.

In cases where legal guardianship was previously granted and a petition is filed to reinstate jurisdiction, the report must address:

• Whether the child could safely remain in, or be returned to, the legal guardian's home (if services were provided to the child or legal guardian, without terminating the legal guardianship)

• Whenever DCFS is assessing the safety of a child in a legal guardianship, including the legal guardian’s willingness or ability to care for the child, the CSW shall consider whether a 387 petition is appropriate.
  
  
• Recommended FM or FR services to maintain the legal guardianship, including a plan for providing those services.

• The funding implications of the petition.

Responsible Party for Writing the WIC 388 Response Report

WIC 388 Petitions Requesting a Return to Home of Parent/Petitioner

If the request is to terminate the legal guardianship to return a child(ren) home of parent, the CSW must assess the safety and best interest of the child(ren) and consider reunification with the parent(s) if all of the following conditions are met:

• The parent(s) whereabouts are known

• The parent(s) appear to have stabilized their life

• The parent(s) have addressed the issues that previously brought them before the court.
  
  

Before making a recommendation to return children to the home of a parent/petitioner:

• Consult with out-stationed County Counsel and/or the assigned DCFS trial attorney to discuss legal procedures, options, and proposed recommendations in response to the 388 petition.

• Convene a Child and Family Team Meeting (CFTM) (with natural and professional supports who are aware of the safety threats/worries) to develop a plan to monitor child safety utilizing those supports.

• Complete a SDM Reunification Reassessment on the removal household to help guide the recommendation.

• Consult with the SCSW and/or ARA, as needed, to discuss case components and any unresolved safety concerns.
  
  
• Assess all children listed on the petition, all children already in the care of the parent/petitioner, and interview each child in person.

• Consult with the current caregiver for those children named in the petition who are in out-of-home care, and with previously-assigned staff regarding their prior assessment(s) of the parent/petitioner.

• Gather and review medical and educational information (school performance, behavior, attendance).

• Consider recommending bonding studies/assessments for children under five (5) years old who have been separated from the parent/caregiver.

WIC 388 Petitions Involving a Kin-GAP Legal Guardianship

Federal Financial Participation (FFP) for Kin-GAP payments continue after the filing of a WIC 388 petition, unless the Juvenile Court, after holding and concluding a hearing on the petition, orders any of the following:

• The placement, responsibility, and care of the youth is transferred from the guardian to the county

• That the child be removed from the guardian's home

• That the court maintain Dependency jurisdiction

• Termination of the guardianship

When a WIC 388 petition is filed on a Kin-GAP case and the court orders any of the above, the case may become ineligible for Title IV-E Federal AFDC-FC benefits. If the child is found to be ineligible for AFDC-FC benefits, the relative legal guardian must be referred to CalWORKS. This includes, but is not limited to, situations where the court reinstates jurisdiction following a WIC 388 petition due to:

• A parent contesting the current guardianship

• A need to appoint a co-guardian

• The relative guardian petitions to adopt

For a Kin-GAP guardian filing a WIC 388 to adopt, CalWORKS will be the source of funding for the case until the Adoption Assistance Payments (AAP) can be initiated following the adoptive placement. In order to maintain Kin-GAP funding until AAP funding starts, DCFS should recommend to the court that the WIC 388 not be granted until DCFS is ready to complete the adoptive placement.

The court report must address the following :

• The possible effects of reinstating jurisdiction on the existing and/or new guardian's ability to receive funding and their ability to continue to receive Kin-GAP once the case is closed or when the new guardianship is established

• When and how the guardian was advised regarding the impact on funding

• The guardian's response and decision whether to continue or withdraw the WIC 388 petition (if it was filed by the guardian)

WIC 388(e) EFC Re-Entry Petition and the Hearing Process

Youth who meet the EFC Re-Entry Eligibility Requirements, may petition the court to reinstate dependency and participate in the DCFS Extended Foster Care (EFC).

When the youth signs the SOC 163, Voluntary Re-Entry Agreement for Extended Foster Care, DCFS has fifteen (15) judicial days within which to file a WIC 388(e) EFC Re-Entry Petition on the youth's behalf. If the youth prefers not to wait for DCFS to file the petition, the youth may also file the WIC 388(e) EFC Re-Entry petition on their own within fifteen (15) judicial days after signing the SOC 163.

The court is required to notify DCFS when a youth files a Re-Entry Petition. The court must provide DCFS with the youth's contact information and notify DCFS if there will be a hearing for which DCFS will be responsible for submitting a report to the court. The Guidelines for Edelman Children's Court Clerk When a Re-Entry Youth Requests to File a Re-Entry Petition, a sample timeline for processing the re-entry, and Code Table Values for Extended Foster Care Re-Entry Documentation are attached.

WIC 388(e) EFC Re-Entry Hearing Reports

When the court reviews the WIC 388(e) EFC Re-Entry Petition and determines that a prima facie showing has been made, a court date will be set. The court will order DCFS to prepare a WIC 388(e) EFC Re-Entry Hearing Report. The hearing will be within fifteen (15) court days from the date the WIC 388(e) EFC Re-Entry Petition was filed with the court.

Time Frames for Court Re-Entry Process Requirements

The WIC 388(e) EFC Re-Entry Hearing Report and all supporting documentation must be filed with the court at least two (2) court days before the hearing.  Copies of the report must be provided to the Re-Entry Youth and the youth's court appointed attorney. The report must address the following California Rules of Court Requirements:

• Confirmation that the Re-Entry Youth was previously under juvenile court jurisdiction and meets the foster care placement and age eligibility requirements

• The condition(s) under section 11403(b) that the Re-Entry Youth intends to satisfy

• The CSW, probation officer, or tribal case worker's opinion as to whether entering a foster care placement is in the Re-Entry Youth's best interests

• Recommendation about the resumption of juvenile court jurisdiction over the youth as an NMD

• Whether the Re-Entry Youth and the placing agency have entered into a reentry agreement for placement

• The type of placement recommended, if the request to return to juvenile court jurisdiction and foster care is granted;

• If the type of placement recommended is a placement in a setting where minor dependents also reside, the background check results for the Re-Entry Youth must be included

If the court determines that the report and other documentation submitted by the CSW do not provide the required information and the court is unable to make the findings and orders required by the California Rules of Court, the hearing must be continued for no more than five (5) court days for DCFS or the Re-Entry Youth to submit additional information as ordered by the court. DCFS will have sixty (60) days to submit a new Transitional Independent Living Plan & Agreement (TILP) to the court once jurisdiction is reinstated.

Back to Policy

PROCEDURE

Completing the Response Report to a WIC 388 Petition

Dependency Investigator (DI)/Case Carrying CSW Responsibilities

1. Review the case in CWS/CMS and the case file (including court reports, minute orders, and prior disposition court orders) and ensure that all identifying information (i.e., names, addresses, etc.) is recorded and current.

• Update the CWS/CMS case record as necessary

2. If considering recommending the return of a child/children to the home of a parent/petitioner:
   
   

1. Complete the SDM Reunification Reassessment to assess the household from which the child was initially removed.
2. Convene a CFTM to develop a plan to monitor child safety.

• Include natural and professional supports who are aware of the safety threats/worries, and utilize these supports as safety resources in the action plan.
  
  

3. Consult the out-stationed County Counsel (or DCFS trial attorney if assigned) to discuss legal options and proposed recommendations. These recommendations may include:

1. Denial of the 388 request
2. Agreeing with the whole recommendation,
3. Agreeing with part of the recommendation, if appropriate.

• For instance, when a parent/petitioner requests a child be returned to their care, CSW may consider first convening a CFTM and/or reinstating FR services.
  
  

4. Assess and interview all children listed on the petition (or those who are already in the care of the proposed caregiver) in person.
   
   

• The Three (3) Houses is an optional child interview format that may be used to help with open-ended questions about each child’s strengths, struggles, and supports in an age-appropriate manner.
  
  

5. Consult with:

• The current caregiver for the children named in the petition who are in out-of-home care.
  
  
• Family members and pertinent collateral contacts to gather information.
  
  
• Previously-assigned staff regarding their prior assessment of the parent/petitioner, including the family strengths, struggles and supports. When possible, bring staff together for a consultation (or CFTM).
  
  
• The SCSW and/or ARA, as needed, to discuss case components and unresolved safety concerns.
  
  
• The Protective Factors is an optional framework that may be used as needed to guide the assessment.
  
  

6. Gather and review any available medical and educational information (school performance, behavior, attendance) for the child(ren).
   
   

3. As applicable, consult with the Kin-GAP Unit and discuss the guardian's ability to receive Kin-GAP funding if the WIC 388 Petition is granted:

4. When applicable, advise the guardian and/or prospective new guardian of the possible impact on funding.

• When writing the response report, include information regarding the possible impact on funding, indicate when the guardian was advised of said information and include the guardian's response/statements and their decision on whether to move forward or withdraw the WIC 388 petition (if the guardian filed the WIC 388 Petition).

5. If a parent or legal guardian's whereabouts are unknown, submit a Due Diligence Search Request.

6. Provide notice to the parent(s) (unless their parental rights have been terminated), legal guardians, and children age ten (10) and older.

7. Create the Interim Review Report in CWS/CMS at least five (5) days prior to the hearing and complete the report as outlined in the attached sample Interim Report.

• The WIC 388 Response Report involving Kin-GAP Legal Guardianships must be created in the Kin-GAP/ Non-CWD moduleNon-Child Welfare Department module within CWS/CMS used to enter non-court cases such as Kin-GAP. It contains placement and payment information, the Legal Guardian’s information and case notes. The Probation Department also enters information in the Non-CWD module for cases supervised by their department..

8. Submit the Interim Review Report via CWS/CMS for SCSW approval.

9. Print, sign, and date the hard copy.

10. Submit the hard copy of the court report and any supporting documents to the SCSW for approval.

DI/Case-Carrying SCSW Responsibilities

1. Review the Interim Review Report and any supporting documents.

• If not approved, return the packet to the CSW and request corrective action.

• If approved, sign and date the Interim Review Report, approve in CWS/CMS and return the packet to the CSW.

Back to Procedure

Completing a WIC 388(e) EFC Re-Entry Hearing Report

AB 12 CSW Responsibilities

1. Generate the Interim Review Report at least five (5) days prior to the hearing and complete all appropriate fields as outlined in the attached sample Interim Review Report.

2. Address all of the California Rules of Court requirements in the report.

3. Submit the Interim Review Report via CWS/CMS for SCSW approval.

4. Print, sign, and date the hard copy.

5. Submit the hard-copy of the court report and any supporting documents to the SCSW for approval.

6. Upon receipt of the approved report, submit the Interim Review Report and supporting documentation to the Clerical Support staff for final preparation and submission to court.

7. Provide copies of the court report and supporting documentation to the Re-Entry Youth and their court appointed attorney at least two (2) court days before the hearing.

8. Keep a copy of the court report and supporting documentation in the DCFS court case file.

9. Upon receipt of the Re-Entry Minute Order reinstating court jurisdiction, provide a copy to the TA/EW and a copy to the Case-Carrying CSW.

AB 12 SCSW Responsibilities

1. Review the Interim Review Report and supporting documentation.

• If not approved, return the packet to the AB 12 CSW and request corrective action.

• If approved, sign and date the Interim Review Report (hard copy), approve in CWS/CMS, and return the packet to the AB 12 CSW.

Back to Procedure

APPROVALS

DI/Case-Carrying SCSW

• Interim Review Report

AB 12 SCSW

• Interim Review Report

• WIC 388(e) EFC Re-Entry Hearing Report

HELPFUL LINKS

Attachments

CWS/CMS Release 6.6 Code Table Values for Extended Foster Care Re-Entry Documentation

Guidelines for Court Clerk When Re-Entry Youth Requests to File Re-Entry Petition

Sample Interim Review Report (revised)

Sample Interim Review Report for Redetermination of NMD Federal Eligibility (AB 640)

State of California Sample Timeline for Processing Re-Entry Case

Three (3) Houses Tool

Forms

CWS/CMS

Interim Review Report

Notice of Hearing on Petition, LA County version

Transitional Independent Living Plan & Agreement (TILP)

LA Kids

DCFS 6075, Child and Family Team Coaching Guide

JV-180, Request to Change Court Order

SOC 163, Voluntary Re-Entry Agreement for Extended Foster Care

Referenced Policy Guides

0080-505.10, Child/Nonminor Dependent Development: Transitional Independent Living Planning

0100-535.25, Extended Foster Care (EFC) Program

0100-535.65, Extended Foster Care: Re-Entry of Nonminor Former Dependents

0300-301.05, Filing Petitions

0300-306.05, Noticing Process for Juvenile Court Proceedings

0300-306.75, Due Diligence

0300-503.20, Writing the WIC 366.26 Hearing Report

0300-503.27, Reinstatement of Parental Rights

0300-503.99, Change of Permanent Plan from Legal Guardianship to Adoption

1000-501.30, Dependency Investigation (DI) Assignment Criteria

Statutes

All County Letter (ACL) 11-15 (January 31, 2011) - Provides information on the Kinship Guardianship Assistance Payment (Kin-GAP) Program requirements.

ACL 11-64 (October 18, 2011) - Reviews Title IV-E Foster Care eligibility to ensure statewide compliance with federal requirements.

ACL 14-28 (March 25, 2014) – Expansion of the definition of relative for the federal Kinship Guardianship Assistance Payment (Kin-GAP) program.

Welfare and Institutions Code (WIC) Section 349 (d) states that if the minor is 10 years of age or older and they are not present at the hearing, the court shall determine whether the minor was properly notified of their right to attend the hearing and inquire whether the minor was given an opportunity to attend.

WIC Section 361.5(b) Directs that under specific conditions a 388 must be filed to terminate FR services prior to a hearing set pursuant to 366.21(e) or a hearing set pursuant to 366.21(f).

WIC Section 361.5(e)(1) Directs that the court shall order reasonable services to a parent or guardian who is incarcerated, institutionalized, or detained by Homeland Security, or who has been deported to the parent’s or guardian’s country of origin unless the court determines that those services would be detrimental to the child. The statute enumerates several factors the court shall consider.

WIC 366.26(i)(3) states in part that a child who has not been adopted after the passage of at least three (3) years from the date the court terminated parental rights and for whom the court has determined that adoption is no longer the permanent plan may petition the juvenile court to reinstate parental rights pursuant to the procedure prescribed by Section 388.

WIC Section 366.3(b): The court retains jurisdiction over a guardianship granted pursuant to WIC 360 or 366.26 even when dependency jurisdiction is terminated. If there are safety concerns or the guardianship must be modified or terminated, this section discusses some actions juvenile courts shall take and what may be required of the Department.

WIC Section 388 (a): Any parent or other person having an interest in a child who is a dependent child of the juvenile court or an NMD (including the child or NMD) may petition the court for a hearing to change, modify, or set aside any order of court previously made.

WIC Section 388 (b): Any person, including a dependent child or NMD, 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 for the purpose of visitation, placement, involvement with the case plan or other request that may be in the best interest of the child.

WIC Section 388 (c)(1): Any party, including a child who is a dependent of the juvenile court, may petition the court, prior to the hearing set pursuant to 366.21(e) or 366.21(f) to terminate court-ordered FR services under very specific circumstances.

WIC Section 388 (c)(2): In determining whether the parent or guardian has failed to visit the child, participate regularly or make progress in the treatment plan, the court will consider factors such as the parent or guardian's incarceration, institutionalization, or participation in a residential substance abuse treatment program.

WIC Section 388 (c)(3): The court shall terminate reunification services during the specified time periods only upon a finding by a preponderance of evidence that reasonable services have been offered or provided, and upon a finding of clear and convincing evidence that one of the conditions in 388(c)(1)(A) or (B) exists.

WIC Section 388 (c)(4): Any party, including the NMD, may petition the court to terminate FR services prior to the hearing set pursuant to 366.31(d).

WIC Section 388 (c)(5): If the court terminates reunification services, it shall order that a hearing pursuant to Section 366.26 be held within 120 days.

WIC Section 388 (d): 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 required persons and by the means prescribed.

WIC Section 388 (e): Discusses the ability of youth who turned 18 while under an order of foster care to reenter dependency jurisdiction prior to their 21st birthday.

WIC Section 388 (e)(4): Prior to the hearing on a petition to resume dependency jurisdiction or to assume or resume transition jurisdiction, the court shall order the county child welfare, probation department or Indian tribe that has entered into an agreement to prepare a report for the court addressing whether the nonminor intends to satisfy at least one of the criteria for placement, placement options for the nonminor, and background checks.

California Rule of Court 5.906: Request by a nonminor for the juvenile court to resume jurisdiction.

California Rules of Court 5.906(h): Requirements for contents of WIC 388(e) hearing report.

California Rules of Court 5.906(i): Requirements for WIC 388(e) hearing findings and orders.

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