BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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          |SENATE RULES COMMITTEE            |                   AB 519|
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                                 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





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           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  







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          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







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          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  







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          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  







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            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

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