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)



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          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  
                                                                       




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            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  
                                                                       




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            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.
                                                                       




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            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  
                                                                       




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            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
                                                                       




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          Prior Legislation:  None Known

          Prior Vote:  Assembly Floor (71 Ayes, 0 Noes)
                   Assembly Judiciary (8 Ayes, 0 Noes)

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