BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 519
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          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  








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            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  








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          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  








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          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