BILL ANALYSIS                                                                                                                                                                                                    






                             SENATE JUDICIARY COMMITTEE
                           Senator Ellen M. Corbett, Chair
                              2009-2010 Regular Session


          SB 179                                                      S
          Senator Runner                                              B
          As Amended March 23, 2009
          Hearing Date: March 31, 2009                                1
          Welfare & Institutions Code                                 7
          KB:jd                                                       9
                                                                      

                                        SUBJECT
                                           
                                Juvenile law: referee

                                      DESCRIPTION
                                           
          This bill would:

           provide that a party who is present at the termination of  
            rights hearing before a commissioner or referee may be served  
            at that time with the findings, the order, and an explanation  
            of the right to appeal the termination order;
           shorten the time period to appeal a judgment in juvenile  
            proceedings from 60 to 30 days;

          (This analysis reflects author's amendments to be offered in  
          committee.)

                                      BACKGROUND  

          Many children are removed from their homes each year due to  
          abuse or neglect, and placed in the juvenile dependency court  
          system.  Through various proceedings, the dependency court  
          determines whether family reunification services should be  
          provided, whether parental rights should be terminated, and  
          formulates a permanent placement plan for the child.  The  
          process for notification of termination orders and a parent's  
          right to appeal are prescribed by statute.  Until the appeals  
          period has expired, adoptive placement cannot begin and adoption  
          subsequent to the termination of parental rights cannot become  
          final. 

          This bill, sponsored by the Los Angeles County Board of  
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          Supervisors, seeks to make several modifications to the appeals  
          process for orders terminating parental rights in juvenile  
          dependency proceedings.   
                                           


                               CHANGES TO EXISTING LAW
           
          1.  Existing law  requires a referee to hear cases assigned to him  
            or her by the presiding judge of the juvenile court.  (Welfare  
            & Institutions Code Section 248.)
             
            Existing law  requires the referee to furnish to the presiding  
            judge and the minor, if the minor is 14 years of age or older  
            or makes that request, and to serve upon the minor's attorney,  
            a written copy of the referee's findings and order.  (Welfare  
            & Institutions Code Section 248.)   Existing law  also requires  
            the referee to furnish to the minor and the parent, guardian,  
            or adult relative, with the findings and the order, a written  
            explanation of the right of those persons to seek review of  
            the order by the juvenile court.  (Welfare & Institutions Code  
            Section 248.)

             Existing law  requires that service made pursuant to these  
            provisions be made by mail.  (Welfare & Institutions Code  
            Section 248.)
             
            This bill  would allow service be made in court on a minor,  
            parent, or guardian who is present in court on a date that the  
            findings and order of the referee are made.

             This bill  would require service of the findings and order by  
            mail to a minor, parent, or guardian who was not present in  
            court when those findings and order were made, except as  
            specified, and would require the mailing to include the  
            written explanation of the right to seek review of the order.

          2.    Existing law  provides that all orders of a juvenile court  
            referee become immediately effective, except as specified.   
            (Welfare & Institutions Code Section 250.)

             Existing rules of court  provide that a notice of appeal in  
            juvenile cases must be filed within 60 days after the  
            rendition of the judgment or the making of the order being  
            appealed.  In matters heard by a referee not acting as a  
            temporary judge, a notice of appeal must be filed within 60  
                                                                      



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            days after the referee's order becomes final.  (California  
            Rules of Court, Rule 8.400.)

             Existing rules of court  provide that an order of a referee not  
            acting as a temporary judge becomes final 10 calendar days  
            after service of a copy of the order and findings has been  
            provided to the parent, guardian, and minor's counsel.   
            (California Rules of Court, Rule 5.540.)

             This bill  would require that a notice of appeal be filed  
            within 30 days after the rendition of judgment or the making  
            of an order being appealed, or, in matters heard by a referee  
            not acting as a temporary judge, within 30 days after the  
            referee's order becomes final.

             This bill  would provide that an order of a referee becomes  
            final no later than 180 days after it is made.
                                         COMMENT  

              1.      Stated need for the bill
           
          The author states:

          Following the issuance of a TPR order, if an appeal is filed by  
          a birth parent, adoptive families face the distressing  
          possibility of losing children they love and plan to adopt.  The  
          appeal period is marked by a high level of uncertainty and  
          anxiety for families who have developed strong emotional  
          attachments to these children.  SB 179 will reduce appellate  
          delays and minimize the emotional stress endured by prospective  
          adoptive families; will advance timely permanency; and will  
          result in more happy endings for these children and their  
          prospective families.  

        2.This bill would allow for in-person service of findings and an  
            order to terminate parental rights
           
          Under current law, notices of orders for the termination of  
          parental rights (TPR) and a written explanation of the right to  
          seek review of the order must be served via certified mail to  
          the birth parents.  This bill would instead allow notices of the  
          TPR order and appeal rights to be personally served to minors,  
          parents or guardians in court.  If any of these individuals are  
          not present in court the day the order is issued, service would  
          then be made by mail to the party's last known address or to the  
          party's counsel.  
                                                                      



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          Personal service to a party at a termination hearing is  
          preferable to mail service because it provides a greater  
          likelihood that the party received actual notice of the order  
          and was informed of their right to appeal.  This is particularly  
          important in cases that involve transient parents who may not  
          have a last known address, making mail service ineffective.  In  
          addition, personal service is less costly since no postage is  
          required to complete service.  Thus, allowing courts to provide  
          service at the time the order is made to parties who are present  
          is beneficial to both the court and the parties involved.  For  
          those who are not in attendance, service would be made by mail,  
          as it is under current law.   

          Section 248.5 of the Welfare & Institutions Code provides that  
          all written findings and orders of the court must be served by  
          the clerk within three judicial days of their issuance.  In  
          order to clarify that this time frame applies to mail service as  
          provided for in this bill, the author has offered the following  
          amendment:  

          On page 2, line 28, after "mail" insert:  "within the time  
          period specified in Section 248.5." 



        3.This bill would shorten the time period to appeal termination of  
            parental rights from 60 to 30 days

           The California Rules of Court, Rule 8.400 governs appeals in  
          juvenile cases.  Pursuant to Rule 8.400, a notice of appeal must  
          be filed within 60 days after the rendition of the judgment or  
          the making of the order being appealed.  In matters heard by a  
          referee not acting as a temporary judge, a notice of appeal must  
          be filed within 60 days after the referee's order becomes final  
          under Rule 5.540(c).  

          This bill would shorten the time frame to appeal judgments in  
          juvenile proceedings from 60 to 30 days.  In a random sampling  
          of 251 termination orders made over a two-month period by the  
          Juvenile Court in Los Angeles County, only 34 (approximately  
          13.55%) appealed.  Of these 34 cases, 22 notices of appeal were  
          filed within 30 days, and 12 were filed after 30 days.  No  
          appeal was filed at all in 217 (approximately 86%) of the cases  
          reviewed in the random sampling.  These numbers indicate that,  
          at least in Los Angeles County, the majority of termination  
                                                                      



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          orders are never appealed.  In the instances where the orders  
          are appealed, the majority of notices are filed within 30 days.   


          According to the author and sponsor, establishing a 30 day  
          appeal period would benefit all parties, because of the more  
          expeditious review of the order.  While the expeditious review  
          of an order would be beneficial to all parties in providing a  
          sense of finality or, in case of a reversal, an alternate  
          permanency plan, it is important to allow for a sufficient  
          appeals time period so as not to significantly impair a parent's  
          ability to seek review of an order terminating their parental  
          rights.  A 30 day time period is reasonable in that it provides  
          parents with sufficient time to seek review, assuming that  
          notice of the order, and of their right to appeal, was promptly  
          provided (by mail or in person).   Further, the random sampling  
          conducted by the Juvenile Court in Los Angeles indicates that  
          the general practice already is to file appeals within 30 days.
           
       4.Author's amendments would remove provisions which would make  
            referee orders final after 180 days 

           Pursuant to California Rule of Court 5.540, an order of a  
          referee not acting as a temporary judge becomes final 10  
          calendar days after service of a copy of the order and findings  
          has been provided to the parent, guardian, and minor's counsel.   
          As previously stated, a notice of appeal must be filed within 60  
          days after the order becomes final.  (California Rule of Court  
          8.400.)  Thus, the 60 day appeals timeframe does not begin to  
          run until the court mails the parent a notice of the order  
          terminating parental rights and an explanation of their right to  
          seek review of the order.  

          According to the author and sponsor, in rare instances, notice  
          of the order terminating parental rights is not sent to the  
          parent(s), leaving children and their prospective adoptive  
          parents in a permanent state of uncertainty.  This bill seeks to  
          resolve this issue by providing that orders terminating parental  
          rights made by a commissioner or referee become final 180 days  
          after they are made, regardless if notice of the order was ever  
          served.  The author and sponsor state that parents are notified  
          of the hearing to terminate parental rights, and if they have  
          shown no interest in the matter within 180 days, the order  
          should become final in the interest of allowing adoptions to  
          proceed without fear of an untimely challenge.  
           
                                                                      



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           Because this bill seeks to cut the timeframes for appeals in  
          half, the provision of notice to parents of the termination of  
          their parental rights and an explanation of their right to seek  
          review becomes extremely important.  Even if a parent does not  
          show up and fails to ascertain the outcome of the hearing,  
          notice should always be provided before an order terminating  
          parental rights becomes final.  Furthermore, the underlying  
          problem identified does not appear to warrant a statutory  
          change.  The problem is not necessarily the statutorily  
          prescribed process, but that court clerks inadvertently do not  
          send out notices in rare instances.  Court clerks should ensure  
          that notice is always sent to parties in a timely manner, which  
          would make the order final and trigger the appeals process.  

          The author has offered the following amendment which would  
          remove these provisions from the bill:

          On page 3, delete SECTION 2, lines 7 through 23, inclusive


           Support  :  California State Association of Counties; California  
          Welfare Directors Association; San Bernardino County Board of  
          Supervisors; Family Law Section of the State Bar (if amended)

           Opposition  :None Known

                                        HISTORY
           
           Source  :  Los Angeles County Board of Supervisors

          Related Pending Legislation  :  None Known

           Prior Legislation  :  None Known

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