Cal. WIC § 361.23 — California Code / Code wic / Division 2 / Part 1 / Chapter 2 / Article 10 / Section 361.23
Section 361.23
Status: in_force

(a) (1) Whenever voluntary admission into a psychiatric residential treatment facility is sought for a child or nonminor dependent who is subject to a petition pursuant to Section 300, the court shall review the application for a voluntary admission as described in this section. A child may not be admitted to a psychiatric residential treatment facility prior to court authorization unless the child is subject to an involuntary hold pursuant to Chapter 2 (commencing with Section 5585.50) of Part 1.5 of Division 5.

(2) For purposes of this section, “voluntary admission” for a child within the custody of a parent, child, or Indian custodian refers to the parent, guardian, or Indian custodian’s voluntary decision to have the child admitted to a psychiatric residential treatment facility. “Voluntary admission” for a child not within the custody of a parent, guardian, or Indian custodian refers to the child’s decision to voluntarily admit themselves pursuant to Section 6552. “Voluntary admission” for a nonminor dependent refers to the nonminor dependent’s decision to voluntarily admit themselves.

(b) (1) When a parent, guardian, or Indian custodian who retains physical custody of a child under the jurisdiction of the juvenile court pursuant to Section 300 seeks to have a child admitted to a psychiatric residential treatment facility or when a child who is the subject of a petition pursuant to Section 300 seeks to make a voluntary admission to a psychiatric residential treatment facility pursuant to Section 6552, the social worker shall file an ex parte application for an order authorizing the voluntary admission pursuant to Section 6552 within 48 hours of being informed of the request or, if the courts are closed for more than 48 hours after being informed of the request, on the first judicial day after being informed of the request. The application shall satisfy the requirements of Title 3 of the California Rules of Court, and include all of the following:

(A) A brief description of the child’s mental disorder.

(B) The name of the psychiatric residential treatment facility proposed for treatment.

(C) A brief description of how the mental disorder may reasonably be expected to be cured or ameliorated by the course of treatment offered by the psychiatric residential treatment facility.

(D) A brief description of why the facility is the least restrictive setting for care and why there are no other available hospitals, programs, or facilities which might better serve the child’s medical needs and best interest.

(E) A copy of the child welfare agency’s plan developed pursuant to subdivisions (c) and (d) of Section 16010.10.

(F) (i) If the parent, guardian, or Indian custodian is seeking the child’s admission to the facility, the basis of their belief that the child’s admission to a psychiatric residential treatment facility is necessary.

(ii) If the child is seeking admission, whether the parent, legal guardian, or Indian custodian agrees with the child’s request for admission.

(G) A description of any mental health services, including community-based mental health services, that were offered or provided to the child and an explanation of why those services were not sufficient, or an explanation for why no such services were offered or provided.

(H) A statement describing how the child was given an opportunity to confer privately with their counsel regarding the admission, as required by Section 6552.

(I) A brief description of whether any member of the minor’s child and family team objects to the admission, and the reasons for the objection, if any.

(J) The information required by this paragraph shall be sufficient to satisfy the applicant’s initial burden of establishing the need for an ex parte hearing required by subdivision (c) of Rule 3.1202 of the California Rules of Court.

(2) Upon receipt of an ex parte application pursuant to paragraph (1), the juvenile court shall schedule a hearing for the next judicial day. The court clerk shall immediately notify the social worker and the child’s counsel of the date, time, and place for the hearing.

(3) The social worker shall provide notice of the hearing in accordance with Title 3 of the California Rules of Court to all parties to the proceeding and their counsel of record, the child’s tribe in the case of an Indian child, the child’s court-appointed special advocate, if applicable, and any person designated as the child’s educational or developmental representative pursuant to subdivision (a) of Section 361. The provisions in subdivision (c) of Section 527 of the Code of Civil Procedure shall apply to notice of the hearing. The social worker shall make arrangements for the child to be transported to the hearing.

(c) (1) At the hearing, the court shall consider evidence in the form of oral testimony under oath, affidavit or declaration, or other admissible evidence, including a child welfare agency court report, as to all of the following:

(A) (i) Whether the child suffers from a mental disorder which may reasonably be expected to be cured or ameliorated by a course of treatment offered by the psychiatric residential treatment facility in which the child wishes to be placed.

(ii) Whether the psychiatric residential treatment facility is the least restrictive setting for care.

(iii) Whether there any available hospital, program, or facility which might better serve the child’s medical needs and best interest, including less restrictive facilities or community-based services.

(B) Whether and how the child, parent, legal guardian, or Indian custodian, as appropriate, has been advised of the nature of inpatient psychiatric services, patient’s rights as identified in Section 6006, and their right to contact a patients’ rights advocate.

(C) Whether and how the social worker addressed the possible voluntary admission with the child’s attorney, including whether the child was given the opportunity to confer privately with their attorney about a voluntary admission.

(D) Whether and how the possible voluntary admission was addressed with the child and family team, whether any member of the team objects to voluntary admission, and the reasons for the objection.

(E) The county child welfare agency plan for the child, as described in Section 16010.10.

(F) Whether the child’s parent, guardian, or Indian custodian has taken reasonable steps to address the child’s mental health disorder.

(2) (A) If the child’s parent, guardian, or Indian custodian seeks to give voluntary consent to the child’s admission, the court shall inquire about the child’s position on the admission.

(B) If the child seeks to give voluntary consent to admission, the court shall inquire whether they knowingly and intelligently consent to admission into the psychiatric residential treatment facility, including whether they are giving consent without fear or threat of detention or initiation of conservatorship proceedings.

(3) The court shall not continue the hearing unless the child consents to the continuance and the court determines that additional evidence is necessary to support the findings required by subdivision (c). Any continuance shall be for only such period of time as is necessary to obtain the evidence and only if it is not detrimental to the child.

(d) (1) The court may grant a request to have the child admitted, or authorize a child’s voluntary consent to admission, into a psychiatric residential treatment facility, only if it finds, by clear and convincing evidence, all of the following:

(A) That the child suffers from a mental disorder which may reasonably be expected to be cured or ameliorated by a course of treatment offered by the hospital, facility, or program in which the child wishes to be placed.

(B) That the psychiatric residential treatment facility is the least restrictive setting needed to treat the child’s mental disorder.

(C) That there is no other available hospital, program, or facility which might better serve the child’s medical needs and best interest, including community-based mental health services.

(D) That the child has given knowing and intelligent consent to admission to the facility and that the consent was not made under fear or threat of detention or initiation of conservatorship proceedings.

(E) That the child and, where appropriate, the parent, legal guardian, or Indian custodian have been advised of the nature of inpatient psychiatric services, patient’s rights as identified in Section 6006, and their right to contact a patients’ rights advocate.

(2) (A) When authorizing a parent’s request for admission or the child’s voluntary consent, the court may make any orders necessary to ensure that the child welfare agency promptly makes all necessary arrangements to ensure that the child is discharged in a timely manner and with all services and supports in place as necessary for a successful transition into another setting.

(B) The court’s order authorizing the admission to a psychiatric residential treatment facility shall be effective until the first of the following events occurs: (1) the parent, guardian, or Indian custodian, or the child if admission was granted pursuant to Section 6552, withdraws consent for the child to be present in the psychiatric residential treatment facility, (2) the court finds that the child no longer suffers from a mental disorder that may reasonably expected to be ameliorated by the treatment offered by the facility or that the psychiatric residential treatment facility is no longer the least restrictive alternative for the treatment of the child’s mental health needs, or (3) the court makes a superseding order. This section does not require a court order to discharge a child if the parent, guardian, Indian custodian, or child withdraws their consent for admission.

(3) For children who were in the custody of their parent, legal guardian, or Indian custodian at the time of the authorization of admission and based on the evidence presented during the ex parte hearing, the court shall consider whether the parent’s, legal guardian’s, or Indian custodian’s conduct contributed to the deterioration of the child’s mental disorder. If the court determines that the parent’s, legal guardian’s, or Indian custodian’s conduct may have contributed to the deterioration, it shall direct the county child welfare agency to investigate whether the child may be safely returned to the custody of the parent, legal guardian, or Indian custodian upon their discharge from the psychiatric residential treatment facility and to take appropriate action, including, but not limited to, taking the child into temporary custody prior to the child’s discharge from the facility and filing a subsequent petition pursuant to Section 342 or a supplemental petition pursuant to Section 387.

(e) (1) Whenever a nonminor dependent seeks to voluntarily consent to admission to a psychiatric residential treatment facility, the social worker shall file an ex parte application within 48 hours of the request, or, if the courts are closed for more than 48 hours after being informed of the request, on the first judicial day after being informed of the request, for a hearing to address whether the nonminor dependent has been advised of the nature of inpatient psychiatric services, patient’s rights as identified in Section 6006, and their right to contact a patients’ rights advocate, and give informed voluntary consent to admission. The application shall satisfy the requirements of Title 3 of the California Rules of Court, and include all of the following:

(A) A brief description of the medical necessity for admission into a psychiatric residential treatment facility.

(B) The name of the psychiatric residential treatment facility proposed for treatment.

(C) A copy of the child welfare agency’s plan developed pursuant to subdivisions (c) and (d) of Section 16010.10.

(D) A description of any mental health services, including community-based mental health services, that were offered or provided to the nonminor dependent and an explanation for why those services were not sufficient, or an explanation for why no such services were offered or provided.

(E) A brief description of why the nonminor dependent believes admission to a less restrictive facility would not adequately address their mental disorder.

(F) A statement describing how the nonminor dependent was given the opportunity to confer privately with their counsel regarding the application.

(G) The information required by this paragraph shall be sufficient to satisfy the applicant’s initial burden of establishing the need for an ex parte hearing required by subdivision (c) of Rule 3.1202 of the California Rules of Court.

(2) Upon receipt of an ex parte application pursuant to paragraph (1), the juvenile court shall schedule a hearing for the next judicial day. The court clerk shall immediately notify the social worker and nonminor dependent’s counsel of the date, time, and place for the hearing.

(3) The social worker shall provide notice of the hearing in accordance with Title 3 of the California Rules of Court to all parties to the proceeding and their counsel of record, the nonminor dependent’s tribe, if applicable, the nonminor dependent’s court-appointed special advocate, if applicable, and any person designated as the nonminor dependent’s educational or developmental representative pursuant to subdivision (a) of Section 361. The provisions in subdivision (c) of Section 527 of the Code of Civil Procedure shall apply to notice of the hearing. The social worker shall make arrangements for the nonminor dependent to be present for the hearing.

(4) At the hearing, the court shall consider evidence in the form of oral testimony under oath, affidavit or declaration, or other admissible evidence, as to all of the following:

(A) Whether the nonminor dependent’s receipt of treatment in the psychiatric residential treatment facility is medically necessary.

(B) Whether any less restrictive treatment setting could serve the nonminor dependent’s treatment needs, including a less restrictive facility or community-based services.

(C) Whether and how the nonminor dependent has been advised of the nature of inpatient psychiatric services, patient’s rights as identified in Section 6006, and their right to contact a patients’ rights advocate.

(D) Whether and how the social worker addressed the voluntary admission with the nonminor dependent’s attorney, including whether the nonminor dependent was given the opportunity to confer privately with their attorney about a voluntary admission.

(E) Whether and how the possible voluntary admission was addressed with the child and family team, whether any member of the team objects to voluntary admission, and the reasons for the objection.

(F) Whether the nonminor dependent gives knowing and intelligent consent to admission.

(G) The county child welfare agency’s plan for the nonminor dependent, as described in subdivisions (c) and (d) of Section 16010.10.

(5) (A) At the hearing, the court shall make a finding whether the nonminor dependent has given knowing and intelligent consent to admission. If the court finds that the nonminor dependent has not given knowing and intelligent consent, it shall direct the social worker to convey its finding to the facility and direct the facility to discharge the nonminor dependent in accordance with the nonminor dependent’s aftercare plan. The social worker shall ensure that the aftercare plan is implemented to ensure integration with the nonminor dependent’s family, school, and community upon discharge. If the court finds that the nonminor dependent has given knowing and intelligent consent, nothing in this section requires a court order to discharge the nonminor if the nonminor dependent subsequently withdraws their consent.

(B) (i) The court may make any orders necessary to ensure that the child welfare agency promptly makes all necessary arrangements to ensure that the nonminor dependent is discharged in a timely manner and with all services and supports in place as necessary for a successful transition into a less restrictive setting.

(ii) The judicial proceedings described in this subdivision shall not delay a nonminor dependent’s access to medically necessary services as defined in Section 14059.5 of the Welfare and Institutions Code and Section 1396d(r) of Title 42 of the United States Code, which may include voluntary admission to a psychiatric residential treatment facility for inpatient psychiatric services, while the judicial proceedings are ongoing.

(f) (1) (A) No later than 60 days following the admission of a child to a psychiatric residential treatment facility, and every 30 days thereafter, the court shall hold a review hearing on the child’s placement in the facility based upon the medical necessity of that placement.

(B) If the hearing described in subparagraph (A) coincides with the date for a status review hearing for a child pursuant to Section 364, 366.21, 366.22, 366.25, or 366.3, the court may hold the hearing simultaneously with the status review hearing.

(C) At the hearing described in subparagraph (A), the court shall consider all of the following:

(i) Whether the parent, guardian, Indian custodian, or child consents, or continues to consent, to the voluntary admission made pursuant to this section.

(ii) Whether the child continues to suffer from a mental disorder that may reasonably be expected to be cured or ameliorated by a course of treatment offered by the facility.

(iii) Whether there continues to be no other available less restrictive hospital, program, facility, or community-based mental health service which might better serve the child’s medical needs and best interest.

(iv) Whether the psychiatric residential treatment facility, which is licensed pursuant to Section 4081, continues to meet its legal obligation to provide services to the child.

(v) The county child welfare agency’s plan as described in subdivisions (c) and (d) of Section 16010.10, and the agency’s actions to implement that plan.

(D) If the court finds at any hearing that the child, if the child consented to admission pursuant to Section 6552, continues to give voluntary consent to admission, that the child continues to suffer from a mental disorder which may reasonably be expected to be cured or ameliorated by a course of treatment offered by the facility, and that there continues to be no other available less restrictive hospital, program, facility, or community-based mental health service which might better serve the child’s medical need and best interest, the court may authorize the child’s continued consent to admission to a psychiatric residential treatment facility. If the child has been in the facility for over 30 days, there shall be a rebuttable presumption that the facility is not the least restrictive alternative to serve the child’s medical need and best interest.

(E) (i) If the court finds that the child, if the child consented to admission pursuant to Section 6552, no longer gives voluntary consent, that the child no longer suffers from a mental disorder which may reasonably be expected to be cured or ameliorated by a course of treatment offered by the facility, or that there is another available hospital, program, facility, or community-based mental health service which might better serve the child’s medical need and best interest, the social worker shall work immediately with the facility for discharge to a different setting with the appropriate and necessary services and supports in place. A statement from the child’s attorney that the child no longer gives voluntary consent to the admission to the facility may be sufficient to support a finding that the child no longer gives voluntary consent. The court shall set a hearing no later than 30 days to verify that the child has been discharged. If the child has not been discharged by the time of the hearing, the court shall issue any and all orders to effectuate the child’s immediate discharge, including exercising its powers under subdivision (b) of Section 362. This paragraph does not preclude involuntary detention of the child pursuant to the applicable requirements of the Children’s Civil Commitment and Mental Health Treatment Act of 1988 or the Lanterman-Petris-Short Act if the child withdraws voluntary consent. This paragraph does not preclude a parent, guardian, Indian custodian, or child’s social worker or attorney from arranging the child’s discharge from the facility without a court order.

(ii) If the court’s determination under clause (i) includes a determination that the child should receive treatment through another hospital, program, facility, or community-based mental health service, the court shall hold a hearing no later than 60 days from the child’s discharge to ensure that the other services have been provided.

(F) If the court determines the psychiatric residential treatment facility, which is licensed pursuant to Section 4081, failed to meet its legal obligation to provide services to the child, it may direct the social worker to engage with the facility to ensure the child is receiving all necessary services. If necessary, the court may exercise its powers under subdivision (b) of Section 362.

(G) The court may make any orders necessary to ensure that the child welfare agency makes all necessary arrangements for the child’s discharge promptly and that all services and supports are in place for the child’s successful transition to a different setting. The court may direct the social worker to work with the facility on the child’s aftercare plans as appropriate based on the child’s progress.

(H) This paragraph does not prevent the court from holding review hearings more frequently at its discretion.

(2) (A) No later than 60 days following the admission of a nonminor dependent to a psychiatric residential treatment facility, and every 30 days thereafter, the court shall hold a review hearing on the child or nonminor dependent’s placement in the facility based upon the medical necessity of that placement.

(B) If the hearing described in subparagraph (A) coincides with the date for a review hearing for a nonminor dependent pursuant to Section 366.31, the court may hold the hearing simultaneously with the status review hearing.

(C) At the hearing in subparagraph (A), the court shall consider all of the following:

(i) Whether the nonminor dependent continues to consent to the voluntary admission made pursuant to this section.

(ii) Whether the nonminor dependent’s receipt of treatment in the psychiatric residential treatment facility is medically necessary.

(iii) Whether there is any less restrictive alternative to meet the nonminor dependent’s needs, including a less restrictive facility or home or community-based mental health services.

(iv) Whether the psychiatric residential treatment facility, which is licensed pursuant to Section 4081, continues to meet its legal obligation to provide services to the nonminor dependent.

(v) The county child welfare agency’s plan as described in subdivisions (c) and (d) of Section 16010.10, and the agency’s actions to implement that plan.

(D) If the court finds at any review hearing that the nonminor dependent continues to voluntarily consent to admission and that the evidence supports the nonminor dependent’s need for care and treatment in the psychiatric residential treatment facility, the court shall enter these findings in the record and direct the social worker to transmit them to the facility or interdisciplinary team. The court may direct the social worker to work with the facility on the nonminor dependent’s aftercare plan as appropriate based on the nonminor dependent’s need to achieve independence.

(E) (i) If the court finds that the nonminor dependent no longer voluntarily consents to admission, the social worker shall notify the facility and immediately work with the nonminor dependent and the facility for discharge to a less restrictive setting with the appropriate and necessary services and supports in place. A statement from the nonminor dependent’s attorney that the nonminor dependent no longer gives voluntary consent to the admission to the facility is be sufficient to support a finding that the nonminor dependent no longer gives voluntary consent. The court shall set a hearing no later than 30 days to verify that the nonminor dependent has been discharged. If the nonminor dependent has not been discharged by the time of the hearing, the court shall issue any and all orders to effectuate the nonminor dependent’s immediate discharge, including exercising its powers under subdivision (b) of Section 362. This paragraph does not preclude involuntary detention of the nonminor dependent pursuant to the requirements of the Lanterman-Petris-Short Act if the nonminor dependent withdraws voluntary consent. This paragraph does not preclude the nonminor dependent from arranging their own discharge from the facility without a court order.

(ii) If the court’s determination under clause (i) includes a determination that the nonminor dependent should receive treatment through another hospital, program, facility, or community-based mental health service, the court shall hold a hearing no later than 60 days from the nonminor dependent’s discharge to ensure that the other services have been provided.

(F) If the court determines the psychiatric residential treatment facility, which is licensed pursuant to Section 4081, failed to meet its legal obligation to provide services to the nonminor dependent, it may direct the social worker to engage with the facility to ensure the nonminor dependent is receiving all necessary services. If necessary, the court may exercise its powers under subdivision (b) of Section 362.

(G) The court may make any orders necessary to ensure that the child welfare agency makes all necessary arrangements for the nonminor dependent’s discharge promptly and that all services and supports are in place for the child’s successful transition to a different setting. The court may direct the social worker to work with the facility on the nonminor dependent’s aftercare plans as appropriate based on the nonminor dependent’s progress.

(H) This paragraph does not prevent the court from holding review hearings more frequently at its discretion.

(g) Whenever a child or nonminor dependent is discharged due to revocation of consent to admission, the county child welfare agency shall, within two court days of being notified of the revocation of consent, file a petition pursuant to Section 388 requesting an order vacating the court’s authorization of the child’s or nonminor dependent’s admission to the facility. This subdivision does not require a court order for the discharge of a child arranged for by the child’s social worker or attorney or nonminor dependent when consent to admission has been withdrawn.

(h) At any review hearing pursuant to Section 364, 366.21, 366.22, 366.3, or 366.31, if a child or nonminor dependent has been admitted to a psychiatric residential treatment facility pursuant to the consent of a conservator, the court shall review the child welfare agency’s plan developed pursuant to subdivisions (c) and (d) of Section 16010.10. The court may make any orders necessary to ensure that the child welfare agency promptly makes all necessary arrangements to ensure that the child or nonminor dependent is discharged in a timely manner and with all services and supports in place as necessary for a successful transition to a less restrictive setting. The court may direct the social worker to work with the facility and, where appropriate, the child’s or nonminor dependent’s court-appointed conservator, to ensure the child or nonminor dependent is receiving all necessary child welfare services and to develop the child’s or nonminor dependent’s aftercare plan as appropriate based on the evidence of the child’s or nonminor dependent’s progress.

(i) The documentation required by this section shall not contain information that is privileged or confidential under existing state or federal law or regulation without the appropriate waiver or consent.

(j) For purposes of this section, a “psychiatric residential treatment facility” refers to a psychiatric residential treatment facility defined in Section 1250.10 of the Health and Safety Code.

(k) All provisions in this section that apply to nonminor dependents shall apply equally to foster children who remain under juvenile court jurisdiction pursuant to subdivision (a) of Section 303 after reaching the age of majority even if they do not meet the definition of “nonminor dependent” contained in subdivision (v) of Section 11400.