BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 519| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 445-6614 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ THIRD READING Bill No: AB 519 Author: Leno (D) Amended: 9/2/05 in Senate Vote: 21 SENATE JUDICIARY COMMITTEE : 6-0, 6/7/05 AYES: Dunn, Morrow, Ackerman, Cedillo, Figueroa, Kuehl NO VOTE RECORDED: Escutia ASSEMBLY FLOOR : 71-0, 4/7/05 (Passed on Consent) - See last page for vote SUBJECT : Parental rights: reinstatement after termination SOURCE : Judicial Council of California Childrens Law Center of Los Angeles DIGEST : This bill permits, under limited circumstances, a child whose parents have had their rights terminated to petition the court to have the rights reinstated. Additionally, this bill authorizes the juvenile court to issue ex parte order protecting parents, guardians, and caregivers even if an order protecting the child is not being issued simultaneously. Senate Floor Amendments of 9/2/05 add double-jointing language to avoid chaptering out provisions in SB 218 (Bowen), AB 1338 (Nation), and AB 1412 (Leno). CONTINUED AB 519 Page 2 Senate Floor Amendments of 8/17/05 make the following clarifying changes that resolve all outstanding concerns with the bill: 1.Clarify that a child may petition to have parental rights reinstated if three years have passed since parental rights were terminated and the court has determined adoption is no longer the permanent plan for the child, or if the child and the Department of Social Services or the adoption agency responsible for the custody for the child stipulate that the child is no longer likely to be adopted. Also clarify that the child, if age 12 or older, must sign the petition unless good cause is shown why the child cannot do so. 2.Require the court to make factual findings supporting the reinstatement of parental rights if the permanent plan, after reinstatement, is not reunification with the parent or legal guardian. 3.Require the court, in order to reinstate parental rights, to find by clear and convincing evidence that the child is no longer likely to be adopted and that reinstatement is in the child's best interest. 4.Clarify that the bill is to be applied retroactively. 5.Make other technical and grammatical corrections. ANALYSIS : 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 provides that a child who has not been adopted within three years after parental rights have been terminated, and for whom the court has determined that adoption is no longer the permanent plan, or is no longer likely to be adopted, may petition the court to reinstate the parental rights. This bill provides that a child may petition for reinstatement of parental rights sooner than three years if the State Department of Social Services of licensed AB 519 Page 3 adoption agency that is responsible for custody and supervision of the child and the child stipulate that the child is no longer likely to be adopted. A child over 12 years of age is required to sign the petition in absence of a showing of good cause as to why the child could not do so. This bill authorizes the juvenile court to reinstate parental rights if it finds by clear and convincing evidence that the child is no longer likely to be adopted and that reinstatement of parental rights is in the child's best interest. The bill provides that if the court reinstates parental rights over a child who is under 12 years of age and for whom the new permanent plan will not be reunification with a parent or legal guardian, the court shall specify that factual basis for its findings that it is in the best interest of the child to reinstate parental rights. This bill is intended to be retroactive and applies to any child who is under the jurisdiction of the juvenile court at the time of the hearing regardless of the date parental rights were terminated. 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 allows the juvenile court to issue an ex parte order protecting a parent, guardian, or caregiver whether or not the child also needs protecting. FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local: No SUPPORT : (Verified 9/2/05) Judicial Council of California (co-source) Children's Law Center of Los Angeles (co-source) County Welfare Directors Association of California Family Law Section of the State Bar of California Children's Advocacy Institute National Center on Youth Law AB 519 Page 4 Los Angeles Affiliate of the National Association of Counsel for Children Juvenile Court Judges of California ARGUMENTS IN SUPPORT : 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 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's office: "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 AB 519 Page 5 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 The Judicial Council of California, co-sponsor of this bill, asserts that while juvenile courts currently have the ability to issue 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." ASSEMBLY FLOOR : AYES: Aghazarian, Arambula, Baca, Bass, Benoit, Berg, Bermudez, Blakeslee, Bogh, Calderon, Canciamilla, Chan, Chavez, Chu, Cogdill, Cohn, Coto, Daucher, De La Torre, DeVore, Dymally, Emmerson, Evans, Garcia, Goldberg, Hancock, Harman, Haynes, Jerome Horton, Shirley Horton, Houston, Huff, Jones, Karnette, Keene, Klehs, Koretz, La Malfa, Laird, Leno, Leslie, Levine, Liu, Matthews, Maze, McCarthy, Montanez, Mullin, Nakanishi, Nava, Negrete AB 519 Page 6 McLeod, Niello, Oropeza, Parra, Pavley, Plescia, Sharon Runner, Ruskin, Saldana, Salinas, Spitzer, Strickland, Torrico, Tran, Vargas, Villines, Walters, Wolk, Wyland, Yee, Nunez NO VOTE RECORDED: Frommer, Gordon, La Suer, Lieber, Mountjoy, Nation, Richman, Ridley-Thomas, Umberg RJG:cm 9/2/05 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END ****