SECTIONS 11385-11393 - California Statutes

WELFARE AND INSTITUTIONS CODE

SECTION 11385-11393

11385. (a) On and after the date that the director executes a
declaration pursuant to Section 11217, the State Department of Social
Services shall exercise its option under Section 671(a)(28) of Title
42 of the United States Code to enter into kinship guardianship
assistance agreements to provide federally funded kinship
guardianship assistance payments on behalf of children to
grandparents and other relatives who have assumed legal guardianship
of the children for whom they have cared as approved relative
caregivers and for whom they have committed to care on a permanent
basis, as provided in Section 673(d) of Title 42 of the United States
Code.
(b) A kinship guardianship assistance payment made under this
article on behalf of a child shall not exceed the rate for children
placed in a licensed or approved home pursuant to Section 11461.
(c) It is the intent of the Legislature to ensure that relative
guardians of children in long-term, stable placements who previously
were receiving kinship guardianship assistance payments on behalf of
those children under Article 4.5 (commencing with Section 11360)
shall instead receive assistance under this article to the extent
that those children are otherwise eligible under Subtitle IV-E
(commencing with Section 470 of the federal Social Security Act (42
U.S.C. Sec. 670 et seq.)).
(d) It is the intent of the Legislature that no county currently
participating in the Child Welfare Demonstration Capped Allocation
Project be adversely impacted by the department's exercise of its
option under Section 671(a)(28) of Title 42 of the United States Code
to enter into kinship assistance agreements as provided in Section
673(d) of Title 42 of the United States Code. Therefore, the
department shall negotiate with the United States Department of
Health and Human Services on behalf of those counties that are
currently participating in the demonstration project to ensure that
those counties receive reimbursement for these new programs outside
of the provisions of those counties' waiver under Subtitle IV-E
(commencing with Section 470 of the federal Social Security Act (42
U.S.C. Sec. 670 et seq.)).

11386. Aid shall be provided under this article on behalf of a
child under 18 years of age, and to any eligible youth under 19 years
of age, as provided in Section 11403, under all of the following
conditions:
(a) The child meets both of the following requirements:
(1) He or she has been removed from his or her home pursuant to a
voluntary placement agreement, or as a result of judicial
determination, including being adjudged a dependent child of the
court, pursuant to Section 300, or a ward of the court, pursuant to
Section 601 or 602, to the effect that continuation in the home would
be contrary to the welfare of the child.
(2) He or she has been eligible for federal foster care
maintenance payments under Article 5 (commencing with Section 11400)
while 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.
(b) Being returned to the parental home or adopted are not
appropriate permanency options for the child.
(c) The child demonstrates a strong attachment to the relative
guardian, and the relative guardian has a strong commitment to caring
permanently for the child and, with respect to the child who has
attained 12 years of age, the child has been consulted regarding the
kinship guardianship arrangement.
(d) The child has had a kinship guardianship established pursuant
to Section 360 or Section 366.26.
(e) The child has had his or her dependency jurisdiction
terminated pursuant to Section 366.3, or his or her wardship
terminated pursuant to subdivision (e) of Section 728, concurrently
or subsequently to the establishment of the kinship guardianship.
(f) If the conditions specified in subdivisions (a) through (e),
inclusive, are met and, subsequent to the termination of dependency
jurisdiction, any 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 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.
(g) A child or nonminor shall be eligible for Kin-GAP payments if
he or she meets one of the following age criteria:
(1) He or she is under 18 years of age.
(2) He or she 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 meets the conditions of
Section 11403.
(4) He or she meets the conditions as described in subdivision
(h).
(h) Effective January 1, 2012, Kin-GAP payments shall continue for
youths who have attained 18 years of age and are under 19 years of
age if they attained 16 years of age before the Kin-GAP negotiated
agreement payments commenced. 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 payments commenced. 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 payments commenced. To be
eligible for continued payments, the youth shall meet one or more of
the conditions specified in subdivision (b) of Section 11403.
Payments made to a nonminor pursuant to the conditions specified
in Section 11403 may be paid in whole or part to the eligible youth
directly, as specified in subdivision (d) of Section 11403.
(i) Termination of the guardianship with a kinship guardian shall
terminate eligibility for Kin-GAP, unless the conditions of Section
11403 apply, provided, however, that 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 and Section
361.4 and the court terminates dependency jurisdiction, subject to
available federal funding.

11387. (a) In order to receive federal financial participation for
payments under this article, the county child welfare agency or
probation department or Indian tribe that entered into an agreement
pursuant to Section 10553.1 shall negotiate and enter into a written,
binding, kinship guardianship assistance agreement with the relative
guardian of an eligible child, and provide the relative guardian
with a copy of the agreement.
(b) The agreement shall specify, at a minimum, all of the
following:
(1) The amount of and manner in which the kinship guardianship
assistance payment will be provided under the agreement, and the
manner in which the agreement may be adjusted periodically, but no
less frequently than every two years, in consultation with the
relative guardian, based on the circumstances of the relative
guardian and the needs of the child.
(2) Additional services and assistance for which the child and
relative guardian will be eligible under the agreement.
(3) A procedure by which the relative guardian may apply for
additional services, as needed, including, but not limited to, the
filing of a petition under Section 388 to have dependency
jurisdiction resumed pursuant to subdivision (b) of Section 366.3.
(c) The agreement shall provide that it shall remain in effect
regardless of the state of residency of the relative guardian.
(d) In accordance with the Kin-GAP agreement, the relative
guardian shall be paid an amount of aid based on the child's needs
otherwise covered in AFDC-FC payments and the circumstances of the
relative guardian but that shall not exceed the foster care
maintenance payment that would have been paid based on the
age-related state-approved foster family home care rate and any
applicable specialized care increment for a child placed in a
licensed or approved family home pursuant to subdivisions (a) to (d),
inclusive, of Section 11461. In addition, the rate paid for a child
eligible for a Kin-GAP payment shall include an amount equal to the
clothing allowance, as set forth in subdivision (f) of Section 11461,
including any applicable rate adjustments. For a child eligible for
a Kin-GAP payment who is a teen parent, the rate shall include the
two hundred dollar ($200) monthly payment made to the relative
caregiver in a whole family foster home pursuant to paragraph (3) of
subdivision (d) of Section 11465.
(e) The county child welfare agency or probation department or
Indian tribe that entered into an agreement pursuant to Section
10553.1 shall provide the relative guardian with information, in
writing, on the availability of the federal Kin-GAP program with an
explanation of the difference between these benefits and Adoption
Assistance Program benefits and AFDC-FC benefits. The agency shall
also provide the relative guardian with information on the
availability of mental health services through the Medi-Cal program
or other programs.
(f) The Kin-GAP agreement shall also specify the responsibility of
the relative guardian for reporting changes in the needs of the
child or the circumstances of the relative guardian that affect
payment.
(g) The county child welfare agency, probation department, or
Indian tribe, as appropriate, shall assess the needs of the child and
the circumstances of the related guardian and is responsible for
determining that the child meets the eligibility criteria for
payment.
(h) Payments on behalf of a child who is a recipient of Kin-GAP
benefits and who is also a consumer of regional center services shall
be based on the rates established by the State Department of Social
Services pursuant to Section 11464.

11388. If a federally eligible child described in Section 11386 has
one or more siblings who are not so described, the child and any
sibling of the child may be placed in the same kinship guardianship
arrangement, in accordance with Section 671(a)(31) of Title 42 of the
United States Code, if the county child welfare department or
probation department or Indian tribe that entered into an agreement
pursuant to Section 10553.1 and the prospective relative guardian
agree on the appropriateness of the arrangement for the siblings.
Kinship guardianship assistance payments may be paid on behalf of
each sibling, at a per-child rate, placed in accordance with this
section.

11389. A child eligible for a Kin-GAP payment under this article is
categorically eligible for Medi-Cal at no share of cost pursuant to
Section 473(b)(3) of the federal Social Security Act (42 U.S.C. Sec.
673(b)(3)).

11390. (a) A person who is a kinship guardian under this article,
and who has met the requirements of Section 361.4, shall be exempt
from Chapter 4.6 (commencing with Section 10830) of Part 2 governing
the statewide fingerprint imaging system. A guardian who is also an
applicant for or a recipient of benefits under the CalWORKS program,
Chapter 2 (commencing with Section 11200) of Part 3, or the Food
Stamp program, Chapter 10 (commencing with Section 18900) of Part 6
shall comply with the statewide fingerprint imaging system
requirements applicable to those programs.
(b) Any exemptions exercised pursuant to this section shall be
implemented in accordance with Section 11393.
(c) Income to the child, including the Kin-GAP payment, shall not
be considered income to the kinship guardian for purposes of
determining the kinship guardian's eligibility for any other aid
program, unless required by federal law as a condition of the receipt
of federal financial participation.
(d) Each county that formally had court-ordered jurisdiction under
Section 300 or Section 601 or 602 over a child receiving benefits
under the Kin-GAP Program shall be responsible for paying the child's
aid regardless of where the child actually resides.
(e) Notwithstanding any other provision of law, when a child
receiving benefits under the AFDC-FC foster care program becomes
eligible for benefits under the Kin-GAP Program during any month, the
child shall continue to receive benefits under the AFDC-FC foster
care program, as appropriate, to the end of that calendar month, and
Kin-GAP payments shall begin the first day of the following month.
(f) All of the following shall apply to any child or nonminor in
receipt of Kin-GAP benefits:
(1) He or she is eligible to request and receive independent
living services pursuant to Section 10609.3.
(2) He or she may retain cash savings, not to exceed ten thousand
dollars ($10,000), including interest, pursuant to Section 11155.5.
(3) He or she shall have earned income disregarded pursuant to
Section 11008.15.

11391. For purposes of this article, the following definitions
shall apply:
(a) "Kinship Guardianship Assistance Payments (Kin-GAP)" means the
aid provided on behalf of children eligible for federal financial
participation under Section 671(a)(28) of Title 42 of the United
States Code in kinship care under the terms of this article.
(b) "Kinship guardian" means a person who meets both of the
following criteria:
(1) He or she has been appointed the legal guardian of a dependent
child pursuant to Section 366.26 or Section 360 or a ward of the
juvenile court pursuant to subdivision (d) of Section 728.
(2) He or she is a relative of the child.
(c) "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.
(d) "Sibling" means a child related to the identified eligible
child by blood, adoption or affinity through a common legal or
biological parent.

11392. On and after the date that the director executes a
declaration pursuant to Section 11217, for purposes of eligibility
under this article, children who are currently receiving Kin-GAP
pursuant to Article 4.5 (commencing with Section 11360) and who were
determined eligible under Subtitle IV-E (commencing with Section 470
of the federal Social Security Act (42 U.S.C. Sec. 670 et seq.)) as
dependent children of the juvenile court placed in foster care with
an approved relative and who remain under the court's jurisdiction
pursuant to Section 366.4 shall be deemed to meet the eligibility
criteria as described in Section 673(d) of Title 42 of the United
States Code. On and after the date that the director executes a
declaration pursuant to Section 11217, the county child welfare
department, probation department, or Indian tribe, as appropriate, at
the time of each Subtitle IV-E eligible child's Kin-GAP annual
redetermination, shall meet with the relative guardian and child and
enter into the written negotiated agreement as described in Section
11387.

11393. (a) Notwithstanding the Administrative Procedure Act
(Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3
of Title 2 of the Government Code) the department may implement the
applicable provisions of the federally funded Kin-GAP Program through
all-county letters or similar instructions from the director.
(b) The department shall develop both the all-county letter
instructions and regulations in consultation with concerned
stakeholders, including, but not limited to, the County Welfare
Directors Association, the Chief Probation Officers of California,
representatives of California Indian tribes, the California Youth
Connection, former foster youth, child advocacy organizations, labor
organizations, foster caregiver organizations, and researchers.
(c) The director shall adopt regulations as otherwise necessary,
to implement the applicable provisions of the federally funded
Kin-GAP Program. Emergency regulations to implement the applicable
provisions of this act may be adopted by the director in accordance
with the Administrative Procedure Act. The initial adoption of the
emergency regulations and one readoption of the initial regulations
shall be deemed to be an emergency and necessary for the immediate
preservation of the public peace, health, safety, or general welfare.
Initial emergency regulations and the first readoption of those
emergency regulations shall be exempt from review by the Office of
Administrative Law. The emergency regulations authorized by this
section shall be submitted to the Office of Administrative Law for
filing with the Secretary of State and shall remain in effect for no
more than 180 days.