BILL ANALYSIS Ó
SB 1425
Page 1
Date of Hearing: August 6, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 1425 (Negrete McLeod) - As Amended: June 26, 2012
PROPOSED CONSENT
SENATE VOTE : 38-0
SUBJECT : DEPENDENT CHILDREN: ORDER MODIFICATION
KEY ISSUE : IN ORDER TO PROTECT FOSTER CHILDREN FROM HARM,
SHOULD PARENTS WHO ARE DENIED REUNIFICATION SERVICES AS THE
RESULT OF EGREGIOUS CONDUCT BE REQUIRED, WHEN SEEKING TO MODIFY
THE DENIAL OF REUNIFICATION SERVICES, TO SHOW BY CLEAR AND
CONVINCING EVIDENCE THAT SUCH MODIFICATION IS IN THE CHILD'S
BEST INTEREST?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This urgency bill prohibits a court from modifying a denial of
reunification services, or changing a custody or visitation
order, for parents whose children were placed in foster care as
the result of extreme physical abuse, sexual abuse, or because
the parent caused the death of another child, as specified,
unless the court finds, by clear and convincing evidence, that
the proposed change is in the best interest of the child.
In support of the bill the author writes that it addresses the
"most egregious factual circumstances under which a parent can
be denied reunification services, to require when a parent files
a petition to modify those orders, that the matter be heard
under the same clear and convincing evidence standard that Ýthe]
court used originally to deny reunification." The bill is
sponsored by the County of San Bernardino and supported by the
Family Law Section of the State Bar, Los Angeles District
Attorney's Office and the County Welfare Directors Association.
It has no known opposition.
SUMMARY : Effective immediately as urgency legislation,
prohibits a court from modifying a denial of reunification
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services or modifying a custody or visitation order for a parent
whose child was removed because of extreme physical or sexual
abuse, who caused the death of another child, or who had
previously had a child removed as the result of abuse or
neglect, unless the court finds, by clear and convincing
evidence, that the proposed change is in the child's best
interest.
EXISTING LAW :
1)Provides that a minor may be removed from the physical custody
of his or her parents for serious abuse or neglect, or risk of
serious abuse or neglect. (Welfare & Institutions Code
Section 300. Unless stated otherwise, all further references
are to that code.)
2)Provides that, unless certain exceptions apply, a court must
order reunification services for a dependent child and his or
her parents or guardian. (Section 361.5(a).)
3)Provides that reunification services need not be provided if
the court finds, by clear and convincing evidence, that, among
other things, one of the following conditions exists:
a) The parent or guardian caused the death of another child
through abuse or neglect;
b) The child or a sibling had previously been adjudicated a
dependent of the court as a result of physical or sexual
abuse and the child has now been removed because of
additional physical or sexual abuse; or
c) The child has been adjudicated a dependent as a result
of severe sexual abuse or the infliction of severe physical
harm to the child, a sibling, or half sibling by a parent
or guardian, and the court finds that it would not benefit
the child to pursue reunification services. (Section
361.5(b).)
4)Permits a party to petition the court to terminate
reunification services if there is a change in circumstances
justifying termination of court ordered reunification services
or if an action or inaction of a parent or guardian creates a
substantial likelihood that reunification will not occur.
(Section 388.)
5)Permits a party to file for reconsideration of an order
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terminating or denying reunification services if the
petitioner shows that changed circumstances require a
modification of the court's order. (Id.)
6)Provides that a court must order a hearing on the merits of a
petition filed for modification of an order if it appears that
the best interests of the child may be promoted by the
proposed change of order. (Id.)
7)Requires the court to construe liberally, in favor of granting
a hearing, a petition for modification of an order under
Section 388. Unless specified otherwise, the petitioner has
the burden of proof under a preponderance of the evidence
standard. (Cal. Rules of Court, Rule 5.570(a).)
COMMENTS : When a child is removed from their parent's custody
because of abuse or neglect, the juvenile court generally orders
that the parents or guardian receive family reunification
services, since the goal of the foster care system is to reunite
children with their family, if it can be done safely.
However, in certain situations where it is not safe for children
to be reunited with their parents, courts are not required to
provide families with reunification services. Cases where the
court may deny reunification services include: (1) the parent
is mentally disabled and unlikely to be able to care for the
child adequately within the statutory period of time; (2) the
parent has been convicted of a violent felony; (3) the parent
has caused the death of another child through abuse or neglect;
or (4) the child or the child's sibling was removed from the
parent's custody for severe physical or sexual abuse. In these
cases, the court is required to find, by clear and convincing
evidence, that the specified condition exists before denying
reunification services.
When a court denies reunification services, the court must hold
a selection and implementation hearing within 120 days of the
denial of reunification services. At that hearing, the court,
can, in the following order of preference: (1) terminate
parental rights and order the child placed for adoption; (2) in
the case of a child under the Indian Child Welfare Act, not
terminate parental rights, but still seek tribal adoption; (3)
appoint a relative with whom the child lives as the child's
guardian; (4) identify adoption as the permanent placement goal
and seek an adoptive family; (5) appoint a non-relative as
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guardian for the child; or (6) place the child in long-term
foster care, subject to court review every six months. Thus
denial of reunification services should quicken permanency
options for the child.
Parents who wish to challenge a denial of reunification services
or change a visitation order may petition the court to modify
the order. These petitions to modify an order after a denial of
reunification services are construed liberally in the
petitioner's favor. If a hearing is granted, the petitioner
must show that a change of circumstances warrants a change in
the court order, and that the request to change the court order
is in the child's best interests. If the court finds by a
preponderance of the evidence that the proposed change is in the
best interests of the child, the court may modify the order.
Thus, while a denial of reunification services requires clear
and convincing evidence to support it, a modification of that
same order can be done at the lower preponderance of the
evidence standard.
This bill clarifies that parents who treated their children
particularly heinously - they caused the death of another child
through abuse or neglect; the child or a sibling had previously
been adjudicated a dependent of the court as a result of
physical or sexual abuse and the child has now been removed
because of additional physical or sexual abuse; or the child has
been adjudicated a dependent as a result of severe sexual or
physical abuse - and have been denied reunification services as
a result, may only get reunification services or modify an
existing custody order if the courts finds by clear and
convincing evidence, that the proposed change is in the best
interest of the child.
In support of this bill the author writes that the bill:
ÝS]eeks to close a loophole to the state mandated expedited
permanency provisions to deny reunification services in
cases of egregious acts of physical, sexual abuse or cause
death to another child.
Current law provides 15 reasons for the court to find by
clear and convincing evidence that reunification services
need not to be provided and that the court shall set a
termination of parental rights hearing within 120 days to
determine an expedited permanency plan for the child.
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Current law also permits a parent, within the 120 days, to
file a modification petition alleging new facts or change
of circumstances as to why they now should be provided
reunification services.
The petitioner only has to meet the prima facie standard
for the petition to be verified and set for hearing. The
burden of proof for the petitioner is by preponderance of
the evidence. Even when the court found the parents
committed egregious acts of physical, sexual abuse or cause
the death of another child by clear and convincing
standard, the current law lets the matter be re-litigated
by a lesser burden of proof, resulting in delaying
permanency for the most severely abused children and
threating to disrupt pre-adoption placements.
This bill would require the court, upon petition of the
parent who had been previously denied reunification in
cases of egregious acts of physical, sexual abuse or death
to seek a hearing to use the clear and convincing evidence
standard for modification for reunification services,
custody or visitation orders.
By increasing the burden on parents seeking to modify denial of
reunification services, custody, or visitation orders, this bill
may also expedite permanency for abused children.
ARGUMENTS IN SUPPORT : In support of the bill, the County of San
Bernardino writes:
Under existing law, a parent found to have committed
egregious acts of physical or sexual abuse, by a clear and
convincing standard, may file a modification petition with
the court alleging new facts or a change in circumstances
to receive a hearing where the burden of proof is at a
lower standard. This can delay permanency for the child
and threaten to disrupt pre-adoption placements.
SB 1425 would require a court to order a hearing on a
proposed modification of reunification services, custody or
visitation orders concerning a child for whom reunification
services were not ordered if the court finds by the same
clear evidence standard that the best interest of the child
would be met by the proposed change.
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While the County of San Bernardino supports the
reunification of families, there are certain instances when
severe and egregious acts of abuse should clearly prohibit
a parent from regaining custody.
REGISTERED SUPPORT / OPPOSITION :
Support
County of San Bernardino (sponsor)
County Welfare Directors Association of California
Family Law Section of the State Bar
Los Angeles District Attorney's Office
Opposition
None on file
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334