BILL ANALYSIS AB 519 Page 1 Date of Hearing: March 29, 2005 ASSEMBLY COMMITTEE ON JUDICIARY Dave Jones, Chair AB 519 (Leno) - As Introduced: February 16, 2005 PROPOSED CONSENT (As Proposed to be Amended) SUBJECT : DEPENDENT CHILDREN: TERMINATION OF PARENTAL RIGHTS KEY ISSUES : 1) SHOULD "legally-orphaned" children be allowed to petition the juvenile court to reinstate parental rights if, after the passage of time, they can show that they are no longer likely to be adopted and that reinstatement would be in their best interest? 2) SHOULD THE JUVENILE COURT'S AUTHORITY TO ISSUE EX PARTE PROTECTIVE ORDERS TO PROTECT THE PARENTS, GUARDIANS, OR CARETAKERS OF CHILDREN UNDER ITS JURISDICTION IN A DEPENDENCY PROCEEDING BE STRENGTHENED? SYNOPSIS This non-controversial bill allows a child to petition for reinstatement of parental rights in very limited and clearly defined circumstances where the child would otherwise remain a legal orphan. In order to reinstate parental rights, the juvenile court is required under the bill to find that changed circumstances exist such that the child is no longer likely to be adopted and that reinstatement of parental rights is in the child's best interest. In addition, the bill authorizes the juvenile court to issue ex parte protective orders to protect the parents, guardians, or caretakers of children under its jurisdiction in a dependency proceeding. SUMMARY : Strengthens the court's authority to act in the best interest of a child in carefully limited circumstances. Specifically, this bill : 1)Allows a child who has been legally freed for at least three years or who all parties stipulate is no longer adoptable, to petition the juvenile court to reinstate parental rights. If the court finds that changed circumstances exist such that the AB 519 Page 2 child is no longer likely to be adopted and that reinstatement of parental rights would be in the child's best interest, the court shall reinstate parental rights. 2)Allows the juvenile court to issue an ex parte order to protect a parent, legal guardian, or caretaker of a child who is the subject of a dependency petition. EXISTING LAW : 1)Provides that the juvenile court has no power to set aside, change, or modify an order terminating parental rights once made. (Welfare and Institution Code section 366.26(i).) 2)Authorizes the court to issue ex parte orders protecting a parent, legal guardian or current caretaker of a dependent child if the court is simultaneously issuing an order to protect the child. FISCAL EFFECT : As currently in print this bill is keyed nonfiscal. COMMENTS : In support of this bill, the author notes that the primary purpose of Welfare and Institutions Code section 366.26 (i) is to prevent a parent from collaterally attacking an order terminating parental rights, thereby delaying the child's right to finality and a permanent adoptive home. However, as written, the statute also inadvisably appears to prohibit reinstatement of parental rights for children for whom there has been a significant change of circumstances, and who regrettably will never get the benefit of being adopted into a new family. Creating a permanent class of legally orphaned children is obviously contrary to California's public policy objectives and the state's desire that courts always be able to act in the best interest of abused and neglected children. A number of court decisions have expressed understandable frustration with the apparent finality of W&I Section 366.26 (i) in fulfilling the court's duty to act in the best interest of the child. (See, e.g., In re J.I. et al. (2003) 108 Cal.App.4th 903, 915: "The only reason a juvenile court terminates parental rights is to free the child for adoption. If the child is not adoptable, termination merely renders the child a legal orphan." In re Jayson T. (2002) 97 Cal.App.4th 75, 88, disapp. on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414: "If AB 519 Page 3 parental rights are terminated, children should go to a better situation, a permanent adoptive home, not a worse one (permanent foster care and no parent)." In re Elise K. (1982) 22 Cal.3d 138, 150 (conc. opn. of Bird, C.J.): "[T]he state has a substantial continuing interest in the welfare of a child, especially a child whom the state has mistakenly - it turns out - rendered parentless.") In the recent case of Jerred H., supra, 121 Cal.App.4th 793, the First District Court of Appeal appropriately invited the California Legislature to consider allowing juvenile courts limited discretion to reinstate parental rights where the child would otherwise be left a legal orphan. In that case, 14-year-old Jerred filed a Welfare and Institutions Code section 388 petition to reinstate parental rights after Jerred's adoption by his stepfather fell through. Jerred still wanted a relationship with his stepfather, whom he asked the court to recognize as his presumed father. The termination order had already become final, however, so no legal basis for relief was possible. Both the juvenile and appellate courts lamented that the law did not allow them to grant Jerred's wish. In fact, the court of appeal went out of its way to underscore the inadequate result compelled by the existing statute: We join the trial court and county counsel in observing the harshness of the result we reach. Because the court has no jurisdiction, the shared desire of the minor and of [his former stepfather] must be frustrated despite the fact that the adoption that was anticipated at the time of the section 366.26 hearing is no longer likely, and regardless of whether granting the request would be in the minor's best interest. In all likelihood, Jerred will be left a 'legal orphan,' despite the recognized disfavor of such status. [Citations.] To avoid such an unhappy consequence, legislation may be advisable authorizing judicial intervention under very limited circumstances following the termination of parental rights and prior to the completion of adoption (Id. at p. 799, emphasis added.) Additional Clarification in the Bill : Under current law, the juvenile court has the authority to issue protective orders to protect the parents, guardians, or current caretakers of a child, even where the child does not reside with that person, but only if the court is simultaneously protecting the child. This limitation can be unnecessarily restrictive on the court AB 519 Page 4 and is not in keeping with the spirit of court consolidation. When the juvenile court becomes aware of the need to protect the parent or caregiver of a child under its jurisdiction, it should have the authority to do so expeditiously and should not be required to direct the individual needing protection to another court. This change will improve access to protection for those involved in dependency matters, and allow the court to address problems confronting the family that may be a threat to reunification for the child in an effective and efficient manner. REGISTERED SUPPORT / OPPOSITION : Support Children's Law Center of Los Angeles (sponsor) Judicial Council of California (co-sponsor) Opposition None on file Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334