BILL ANALYSIS SENATE JUDICIARY COMMITTEE Senator Joseph L. Dunn, Chair 2005-2006 Regular Session AB 519 A Assembly Member Leno B As Amended March 30, 2005 Hearing Date: June 7, 2005 Welfare and Institutions Code 5 MJM:rm 1 9 SUBJECT Parental Rights: Reinstatement After Termination DESCRIPTION This bill would permit, under limited circumstances, a child whose parents have had their rights terminated may petition the court to have the rights reinstated. Additionally, this bill would provide the juvenile court the authority to issue ex parte order protecting parents, guardians, and caregivers even if an order protecting the child is not being issued simultaneously. BACKGROUND Children may become dependent children of the juvenile court if they are abused or neglected. [Welfare and Institutions Code Section 360.] If reunification efforts have failed and the juvenile court finds that the dependent child is likely to be adopted, the court shall terminate the parental rights to the dependent child and order that the child be placed for adoption. [Welfare and Institutions Code Section 366.26.] Parental rights must be terminated before a child may be placed for adoption, and the only avenue for attacking the termination of parental rights is a timely appeal of the order. A juvenile court may issue an order protecting a dependent child, and may also issue an order protecting a parent, guardian or caregiver at the same time it issues an order (more) AB 519 (Leno) Page 2 protecting the child. CHANGES TO EXISTING LAW 1. Existing law provides that once parental rights are terminated, the order is final and binding on all parties and may only be attacked via a timely, direct appeal. [Welfare and Institutions Code Section 366.26.] This bill would provide that a child who has not been adopted within three years after parental rights have been terminated may petition the court to reinstate the parental rights. This bill would provide that a child may petition for reinstatement of parental rights sooner than three years if all parties agree that the child is no longer adoptable. This bill would authorize the juvenile court to reinstate parental rights if it finds by a preponderance of the evidence that the child is no longer likely to be adopted and that reinstatement of parental rights is in the child's best interest. 2. Existing law allows a juvenile court to issue an ex parte order protecting a child. Existing law allows a juvenile court to issue an ex parte order protecting a parent, guardian, or caregiver simultaneously with an ex parte order protecting a child. This bill would allow the juvenile court to issue an ex parte order protecting a parent, guardian, or caregiver whether or not the child also needs protecting. COMMENT 1. Need for the bill Reinstatement of terminated parental rights The Judicial Council of California and the Children's Law Center of Los Angeles, co-sponsors of this bill, hail this bill as an appropriate and reasonable solution to AB 519 (Leno) Page 3 the "legal orphan" problem that arises when a child has had his or her parental rights terminated in anticipation of adoption, but the adoption is never completed for some reason. According to the author: California law provides no remedy for these children. Adoption is the preferred placement plan for abused and neglected children who cannot be reunified with their parents. In order to free a child for adoption, the juvenile court must terminate parental rights based on a finding that the child is likely to be adopted. The reality, however, is that older children, children with special physical or emotional needs, and children who are part of a sibling group are often only likely to be adopted by a specific, identified prospective parent. For too many of these youth, after the court terminates parental rights, the adoptive placements fail and these children end up becoming legal orphans-severed from all family ties. An October 2003 report by the California Department of Social Services discloses that, as of July 30, 2002, there were 5,846 legally freed children in the state not yet placed in adoptive homes. Of these children, 913 no longer had a case plan goal of adoption. The vast majority of these children were living in long-term foster care. The only remedy for these children under current California law, laments the Children's Law Center of Los Angeles (CLC), is a timely appeal of the termination order. And even then, if an adoption has failed since the termination order was issued, it may not be considered by the appellate court. [See In re Zeth S. (2003) 31 Cal. 4th 396.] CLC contends that children who are never adopted should not have to suffer the permanent loss of their legal relationships to their parents, siblings and other relatives, including their rights to parental support and to inherit from family members. Nor should they bear the stigma of being labeled a legal orphan. Ex parte orders protecting parents, guardians and caregivers Judicial Council, co-sponsor of this bill, asserts that while juvenile courts currently have the ability to issue AB 519 (Leno) Page 4 ex parte orders protecting parents, guardians and caretakers if the court is simultaneously issuing an order protecting the child, the court cannot issue an order protecting the parent, guardian or caretaker if the child is not also at risk. There are situations that arise where the parent or the caregiver requires protection, but the child is not at risk. In such cases the court needs the authority to act in a timely manner to protect the family and further the goal of reunification. Currently the court must direct the party to another court to seek protection; this change will streamline that process and allow the juvenile court jurisdiction over all of the issues relevant to the child and family whose welfare it must oversee. 2. Invitation for legislation in In re Jerred H. In re Jerred H. (2004) 121 Cal. App. 4th 793, involved a 14-year-old boy who had been removed from his mother's care because his mother's substance abuse prevented her from caring for him. He was placed with his stepfather, who was separated from his mother. Jerred stipulated to the termination of parental rights, including the rights of Jerred's mother and any alleged fathers, in anticipation of being adopted by his stepfather. However, before the adoption was completed, Jerred was removed from his stepfather's home because of unsanitary conditions. Jerred's long term placement plan was changed from adoption by his stepfather to long-term foster care. Jerred petitioned the court requesting parental rights be reinstated. He also requested that his stepfather be declared Jerred's presumed father. If parental rights were restored and the stepfather were determined to be Jerred's presumed father, then Jerred would be able to live with his stepfather again. Without these legal maneuverings, Jerred would remain in foster care and his stepfather would have no legal rights to maintain contact with Jerred. The trial court apologized to Jerred and denied his request because it had no authority to consider the reinstatement of parental rights. Jerred appealed. AB 519 (Leno) Page 5 The appellate court expressed the same dissatisfaction as did the trial court. Noting that its hands were tied by the statute, the court of appeal concluded it had no jurisdiction to set aside the termination of parental rights despite a strong desire to help Jerred. 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 the of the aspiring presumed father 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 minor's best interest. In all likelihood, Jerred will be left a "legal orphan," despite the recognized disfavor of such status. 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. However, the wisdom of qualifying the present finality of a section 366.26 order in such a manner is for the Legislature to evaluate. Unless and until it does so, the courts must respect the present system. Supporters point to a host of court decisions in which the appellate courts have struggled with the severe results mandated by Section 366.26. In In re Ronald V. and In re David H. the court concluded it had no authority to entertain petitions by parents to modify an order terminating their parental rights despite the fact that circumstances had changed dramatically since the order was entered. In Ronald V. the mother had agreed to termination on the understanding that her friend would adopt her child. However, the friend died before the adoption could take place. In David H. the parents agreed to termination based on representations by the social worker that their son would be placed in a loving, stable home. Shortly after their rights were terminated, they discovered not only that the adoptive family was bankrupt and on the verge of divorce, but that the adoptive father was an abusive alcoholic. In other cases, the circumstances changed while an appeal of the AB 519 (Leno) Page 6 termination order was pending and so the courts have considered the additional evidence. [See In re JaysonT. (2002) 97 Cal. App. 4th 75 and In re Elise K. (1982) 33 Cal. 3d 138.] However, recently the Supreme Court has held that evidence of changed circumstances during an appeal should not be considered by the appellate court. [In re Zeth S. (2003) 31 Cal. 4th 396.] 3. This bill would allow a court to modify a termination order under limited circumstances The solution to the legal orphan problem proposed by this bill is narrowly tailored to allow a child to petition for reinstatement of parental rights, but prevent a parent from collaterally attacking a termination order and stalling an adoption. The inflexibility of the current law is designed and needed to prevent a parent from collaterally attacking termination order and preventing or stalling an adoption that is in the child's best interest. To continue to achieve that goal, but allow for reinstatement when appropriate, this bill would limit the right to petition to the child. It would also require that at least three years have passed since the termination order was issued or that all parties stipulate that the child is no longer adoptable. Finally, the court may only reinstate parental rights if the child has proven by a preponderance of the evidence that he or she is not likely to be adopted and that reinstatement would be in his or her best interest. Support: County Welfare Directors Association of California; Family Law Section of the State Bar of California; Children's Advocacy Institute; National Center on Youth Law; Los Angeles Affiliate of the National Association of Counsel for Children; Juvenile Court Judges of California Opposition: None Known HISTORY Source: Judicial Council of California and Children's Law Center of Los Angeles Related Pending Legislation: None Known AB 519 (Leno) Page 7 Prior Legislation: None Known Prior Vote: Assembly Floor (71 Ayes, 0 Noes) Assembly Judiciary (8 Ayes, 0 Noes) **************