BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Martha M. Escutia, Chair
2003-2004 Regular Session
AB 2807 A
Assembly Member Steinberg B
As Amended June 14, 2004
Hearing Date: June 22, 2004 2
Welfare & Institutions Code 8
KH 0
7
SUBJECT
Minors
DESCRIPTION
This bill makes corrections to AB 408 (Steinberg, Stats.
2003, Ch. 813) that were inadvertent errors made in
drafting last-minute amendments. Specifically, this bill
conforms amendments that were made in some sections but not
in other related sections, clarifying that certain
requirements of AB 408 apply only to a child who is 10
years of age or older and has been in out-of-home placement
in a group home (and not all non-relative care) for six
months or longer from the date the child entered foster
care. This bill also clarifies that the mandate for a
visitation order or finding of detriment applies when the
juvenile court establishes a permanent plan of either a
guardianship or long-term foster care.
BACKGROUND
AB 408 was designed to improve and maintain relationships
between foster children and caring adults who are important
to each child. Among other things, the bill requires that
foster children 10 years of age or older who are placed in
group homes be asked about the adults who are important to
them, and requires the courts and counties to attempt to
preserve those relationships, as appropriate.
In a last-minute amendment to AB 408, Legislative Counsel
separated the long paragraph of Section 366.26(c)(4) into
(more)
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two shorter subparagraphs, and the last sentence of the
former paragraph ended up at the end of the second
subparagraph. This seemingly clerical amendment to Section
366.26(c)(4) had unforeseen and unintended consequences in
at least one case then-pending before the California
Supreme Court (see Comment 3, below).
This bill is intended to clean up the code sections amended
by AB 408 to reflect uniform language throughout them, and
to clearly state that the court must issue a visitation
order or make a finding of detriment when the juvenile
court establishes a permanent plan of either a guardianship
or long-term foster care.
CHANGES TO EXISTING LAW
1.Existing law provides that when a child who is 10 years
of age or older has been in out-of-home placement in a
group home for six months or longer from the date the
child entered foster care, the case plan shall include an
identification of individuals, other than the child's
siblings, who are important to the child and actions
necessary to maintain the child's relationship with those
individuals, provided that those relationships are in the
best interest of the child. The social worker must ask
every child who is 10 years of age or older who is placed
in a group home to identify any individuals other than
the child's siblings who are important to the child, and
may ask any child who is younger than 10 years of age to
provide that information, as appropriate. The social
worker must make efforts to identify other individuals
who are important to the child, consistent with the
child's best interests. [Welf. & Inst. Code Sec.
16501.1(i).]
This bill would make corrections in other code sections
to accurately reflect that this requirement and court
monitoring thereof applies only to a child who is 10
years of age or older and has been in out-of-home
placement in a group home for six months or longer from
the date the child entered foster care.
2.Existing statutory law states in one subparagraph that if
the court finds that adoption of a dependent child or
termination of parental rights is not in the child's best
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interest, the court shall either appoint a legal guardian
or order long-term foster care. That one subparagraph
states the preference for guardianship. The next
subparagraph describes when long-term foster care shall
be ordered and states, "The court shall also make an
order for visitation with the parents or guardians unless
the court finds by a preponderance of the evidence that
the visitation would be detrimental to the physical or
emotional well-being of the child." [Welf. & Inst. Code
Sec. 366.24(c)(4)(A), (B).]
Existing case law holds that under Welfare & Institutions
Code Section 366.26(c)(4), the mandate of an order of
visitation with parents or guardians or a finding of
detriment is triggered only when the juvenile court makes
a permanent plan of long-term foster care, and not when
the plan is a guardianship. However, the court has
discretion to issue visitation orders when appointing a
legal guardian. In re S.B. (2004) 32 Cal.4th 1287,
1295-1296, 1297 n. 4.
This bill would state that whether the court orders a
guardianship or long-term foster care, the court must
either enter an order of visitation with the parents or
guardians or make a finding of detriment.
COMMENT
1.Amendment to Welfare & Institutions Code Section
366.26(c)(4)
The author states this change (the amendment to Section
366.26(c)(4) to have the sentence concerning an order for
visitation with the parents or guardians or a finding of
detriment moved from the end of subparagraph (B) to its
own subparagraph (C)) is intended to clarify that the
mandate for either a court visitation order or court
finding of detriment applies when the juvenile court
establishes either a plan of guardianship or a plan of
long-term foster care.
The author was unaware that there was any dispute or
issue of statutory interpretation of Section 366.26(c)(4)
before its amendment by AB 408 concerning the application
of the mandate to one permanent plan and not to both (see
Comment 3, below). The Legislature never debated the
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issue of mandating an order of parental visitation or a
finding of detriment in guardianship or long-term foster
care cases as a provision of AB 408, nor was the issue
included in any analysis of the bill. The author states,
"The last minute amendment that resulted in creating
subparagraphs (A) for guardianship and (B) for long term
foster care was offered by Legislative Counsel, in a
faulty effort to make the section more readable and
understandable. But the change raised [a] serious
question [in] the court. This was a pure drafting error
that will be corrected in AB 2807 . . . ."
The amendment moving the last sentence in Section
366.26(c)(4)(B) to its own subparagraph (C) will make it
clear that the requirement of an order of visitation of
finding of detriment applies in both guardianship and
long-term foster care cases. This serves the purposes of
prior law and of AB 408 to improve and maintain
relationships between a foster child and caring adults
who are important to the child, regardless of the
permanent plan established for the child.
2.Techincal amendments to Welfare & Institutions Code
Sections 366, 366.1, 366.21, 366.22, 366.26, 366.3, 391,
10609.4, 16206 and 16501.1
The author states that in the Senate Appropriations
Committee last year, the scope of the permanancy planning
and relationship building requirements for foster
children in AB 408 was narrowed from foster youth aged 10
and older, in the system for 6 months or longer and
living with non-relatives to only foster youth aged 10
and older, in the system for 6 months or longer and
living in group homes . However, the amendments made to
the bill to effect this narrowing were not also made in
the code sections concerning what the court is required
to monitor.
This bill corrects code sections amended by AB 408 to
remove hold-over language from earlier versions of the
bill that were not properly amended to reflect the
narrowed scope of the bill.
3.Summary of court cases pending at time AB 408 was passed
and subsequent court action affected by AB 408
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a. Preexisting cases and subsequent Supreme Court
ruling
Since 1997, Welfare & Institutions Code Section
366.26(c)(4) had stated that if the court finds that
adoption of the child or termination of parental
rights is not in the best interest of the child, the
court shall order as the child's permanency plan
either a guardianship or long-term foster care. The
paragraph continued to describe factors for the court
to consider in selecting between guardianship and
long-term foster care. The last sentence of the
paragraph stated:
The court shall also make an order for visitation
with the parents or guardians unless the court finds
by a preponderance of the evidence that the
visitation would be detrimental to the physical or
emotional well-being of the child.
The proper interpretation of this final sentence was
in dispute, and there was a split among the districts
as to whether a court was required to make an order
for visitation or finding of detriment only in the
event the court ordered long-term foster care or if
the order or finding was required if the court ordered
either a guardianship or long-term foster care. [ In
re Jasmine P. (2001) 91 Cal.App.4th 617 (order
required only for foster care); In re Randalynne G.
(2002) 97 Cal.App.4th 1156 (order required for both
permanent plans); In re S.B. (2002) 103 Cal.App.4th
739 (same); In re J.H. (2002) 108 Cal.App.4th 616
(same).]
The California Supreme Court granted review of In re
S.B. and In re J.H. in January and July of 2003,
respectively.
In May 2004, the Supreme Court issued its opinion in
In re S.B. and used the amendment to Section
366.26(c)(4) effected by AB 408 as the basis for its
ruling. The court stated,
[t]he ambiguity [of whether a visitation order was
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required under both permanent plans or only
long-term foster care] has now been eliminated by a
statutory amendment that took effect on January 1,
2004, while this case was pending before us. . . .
[] The [final] sentence in section 366.26(c)(4)(B)
makes it clear that the juvenile court's obligation
to "make an order for visitation" is triggered only
when the court decides [on long-term foster care]
and not when, as here, the court appoints [a] legal
guardian. [Italics in original.] [32 Cal.4th 1287,
1295-1296]
The court stated that in the context of the specific
case before it, it did not need to decide whether the
Legislature's amendment to Section 366.26(c)(4)
changed the statute or merely clarified its meaning.
[32 Cal.4th at 1296.]
According to the California Supreme Court's website
and an online legal research service, In re J.H. is
still pending before the California Supreme Court.
b. Discussion of this bill (AB 2807) in Supreme
Court opinion
While In re S.B. was pending before the Supreme
Court, the child's mother requested that the court
judicially notice AB 2807 and the analysis of this
bill by the Assembly Judiciary Committee, which
request the court granted. In its opinion, the court
commented that AB 2807
would again amend section 366.26(c)(4) by moving the
last sentence concerning visitation when the child
is placed with a relative or foster parent, and not
a legal guardian, into a separate and new
subdivision . . . . The committee's analysis
contains a brief discussion under the heading
"Author's amendment," stating that this change is
"to correct a drafting error" in Assembly Bill No.
408 (2003-2004 Reg. Sess.), the legislation that
amended the statute effective January 1, 2004. [32
Cal.4th at 1296, n.3.]
However, the court stated that the existence of AB
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2807 and the committee analysis "does not affect our
decision here. The bill has not been enacted into
law, and we generally 'do not rely on evidence of the
individual views of proponents of legislation.'
[Citations omitted.]" [ Id .]
Support: California Welfare Directors Association
Opposition: None Known
HISTORY
Source: Author
Related Pending Legislation: AB 1895 (Nation) amends Welf.
& Inst. Code Sec. 366.24 on another
point; chaptering-out amendments
required in each
AB 2749 (Dutton) amends Welf. & Inst. Code Sec. 16206 on
another point; chaptering-out
amendments required in each
AB 2795 (Wolk) amends Welf. & Inst. Code Sec. 16501.1 on
another point; chaptering-out
amendemnts required in each
AB 3079 (Assembly Judiciary Committee) amends Welf. &
Inst. Code Sec. 366.21 on another
point; chaptering-out amendments
required in each
Prior Legislation: AB 408 (Steinberg, Stats. 2003, Ch.
813)
Prior Vote: Assembly Human Services Committee 7-0
(Consent)
Assembly Judiciary Committee 11-0 (Consent)
Assembly Floor 72-0 (Consent)
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