BILL ANALYSIS Ó SENATE JUDICIARY COMMITTEE Senator Hannah-Beth Jackson, Chair 2013-2014 Regular Session AB 2034 (Gatto) As Amended June 11, 2014 Hearing Date: June 24, 2014 Fiscal: Yes Urgency: No TMW SUBJECT Family Relations: Family Visitation: Protective Orders DESCRIPTION Existing law, the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA), authorizes a conservator or a trustee of an elder or dependent adult, an attorney-in-fact of an elder or dependent adult, a person appointed as a guardian ad litem for an elder or dependent adult, or another person legally authorized to seek a protective order on behalf of an elder or dependent adult who has suffered physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering, or the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. This bill would additionally allow a petition to be brought by an adult child of an abused elder or dependent adult to enjoin a party from interfering with visitation between the adult child and the abused elder or dependent adult when an elder or dependent adult and would allow a court to issue an order enjoining a party from isolating or otherwise interfering with the visitation of the abused elder or dependent adult. This bill would require the court to appoint counsel for the abused elder or dependent adult and would require the appointed counsel to be paid for by the adult child who brings the petition. This bill would also require the appointed counsel to submit a report to the court regarding whether the abused elder or adult has capacity and desires the proposed visitation. This (more) AB 2034 (Gatto) Page 2 of ? bill would require this report to be confidential, except as provided. BACKGROUND The California Legislature, in recognition of the need of special protection for California's vulnerable elder and dependent adult population, has enacted significant criminal and civil protections for elders and dependent adults. In 1983, the Legislature determined that crimes against dependent adults deserved special consideration and established enhanced criminal penalties against individuals who perpetrate crimes, including great bodily harm, infliction of pain, endangerment, and false imprisonment, against dependent adults. In 1986, the Legislature extended these protections to elders. In 1992, the Legislature enacted SB 679 (Mello, Ch. 774, Stats. 1991), which established the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA). EADACPA provides enhanced civil remedies to ensure adequate representation of and protection for victims of elder or dependent adult physical and financial abuse and neglect. These laws authorize courts to issue temporary restraining orders and injunctions against persons engaging in violent, threatening, abusive, or harassing conduct. This bill would additionally authorize a court to issue an order enjoining a person from interfering with visitation between an abused elder or dependent adult and his or her adult child. CHANGES TO EXISTING LAW Existing law generally authorizes courts to issue protective orders in proceedings involving civil harassment, workplace and postsecondary school site violence, domestic violence, juvenile law, and elder or dependent adult abuse. (Code Civ. Proc. Secs. 527.6, 527.8, 527.85; Fam. Code Sec. 6200. et seq.; Welf. & Inst. Code Secs. 213.5, 15657.03.) Existing law , the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA), generally provides civil protections and remedies for victims of elder and dependent adult abuse and neglect. (Welf. & Inst. Code Sec. 15600 et seq.) Existing law authorizes a petition to be brought on behalf of an abused elder or dependent adult by a conservator or a trustee of the elder or dependent adult, an attorney-in-fact of an elder or AB 2034 (Gatto) Page 3 of ? dependent adult who acts within the authority of the power of attorney, a person appointed as a guardian ad litem for the elder or dependent adult, or other person legally authorized to seek a protective order, as defined. (Welf. & Inst. Code Sec. 15657.03(a)(2).) Existing law provides that, upon filing a petition for protective orders under EADACPA, the petitioner may obtain a temporary restraining order, as specified, except to the extent a rule is inconsistent. However, the court may issue an ex parte order excluding a party from the petitioner's residence or dwelling only on a showing of all of the following: facts sufficient for the court to ascertain that the party who will stay in the dwelling has a right under color of law to possession of the premises; that the party to be excluded has assaulted or threatens to assault the petitioner, other named family or household member of the petitioner, or a conservator of the petitioner; and that physical or emotional harm would otherwise result to the petitioner, other named family or household member of the petitioner, or a conservator of the petitioner. (Welf. & Inst. Code Sec. 15610.03(d).) Existing law authorizes the court to grant or deny a request for the issuance of a temporary restraining order without notice on the same day that the petition is submitted to the court, unless the petition is filed too late in the day to permit effective review, in which case the order shall be granted or denied on the next day of judicial business in sufficient time for the order to be filed that day with the clerk of the court. (Welf. & Inst. Code Sec. 15610.03(e).) Existing law requires, within 21 days, or, if good cause appears to the court, 25 days, from the date that a request for a temporary restraining order is granted or denied, a hearing to be held on the petition. If no request for temporary orders is made, the hearing shall be held within 21 days, or, if good cause appears to the court, 25 days, from the date that the petition is filed. (Welf. & Inst. Code Sec. 15610.03(f).) Existing law authorizes the respondent to file a response that explains or denies the alleged abuse. (Welf. & Inst. Code Sec. 15610.03(g).) Existing law authorizes the court, upon notice and a hearing, to issue any of the orders, as specified, and authorizes the court, AB 2034 (Gatto) Page 4 of ? after notice and hearing, to issue an order excluding a person from a residence or dwelling if the court finds that physical or emotional harm would otherwise result to the petitioner, other named family or household member of the petitioner, or conservator of the petitioner. (Welf. & Inst. Code Sec. 15610.03(h).) Existing law provides that, in the discretion of the court, an order issued after notice and a hearing may have a duration of not more than five years, subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party. These orders may be renewed upon the request of a party, either for five years or permanently, without a showing of any further abuse since the issuance of the original order, subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party. The request for renewal may be brought at any time within the three months before the expiration of the order. (Welf. & Inst. Code Sec. 15610.03(i)(1).) Existing law specifies that there is no filing fee for a petition, response, or paper seeking the reissuance, modification, or enforcement of an EADACPA protective order. (Welf. & Inst. Code Sec. 15610.03(q).) Existing law provides, as specified, that a petitioner shall not be required to pay a fee for law enforcement to serve an order issued under the above provision. (Welf. & Inst. Code Sec. 15610.03(r.) Existing law authorizes the court to award court costs and attorney's fees to the prevailing party in any EADACPA protective order action. (Welf. & Inst. Code Sec. 15610.03(s).) Existing law provides the following definitions: "elder" means any person residing in California, 65 years of age or older (Welf. & Inst. Code Sec. 15610.27); "dependent adult" means any person between the ages of 18 and 64 years who resides in California and who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities, or whose physical or mental abilities have diminished because of age (Welf. & Inst. Code Sec. 15610.23); AB 2034 (Gatto) Page 5 of ? "abuse of an elder or dependent adult" means either: (a) the physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering; or (b) the deprivation by a care custodian of goods or services that are necessary to avoid harm or mental suffering (Welf. & Inst. Code Sec. 15610.07); "physical abuse" means assault, battery, assault with a deadly weapon, unreasonable physical constraint, or prolonged or continual deprivation of food or water, sexual assault, or use of a physical or chemical restraint or psychotropic medication (Welf. & Inst. Code Sec. 15610.63); and "isolation" means any of the following: o acts intentionally committed for the purpose of preventing, and that do serve to prevent, an elder or dependent adult from receiving his or her mail or telephone calls; o telling a caller or prospective visitor that an elder or dependent adult is not present, or does not wish to talk with the caller, or does not wish to meet with the visitor where the statement is false, is contrary to the express wishes of the elder or the dependent adult, whether he or she is competent or not, and is made for the purpose of preventing the elder or dependent adult from having contact with family, friends, or concerned persons; o false imprisonment, as defined; or o physical restraint of an elder or dependent adult, for the purpose of preventing the elder or dependent adult from meeting with visitors. (Welf. & Inst. Code Sec. 15610.43(a).) Existing law provides that acts alleging isolation are subject to a rebuttable presumption that they do not constitute isolation if they are performed pursuant to the instructions of a physician and surgeon licensed to practice medicine in the state, who is caring for the elder or dependent adult at the time the instructions are given, and who gives the instructions as part of his or her medical care. (Welf. & Inst. Code Sec. 15610.43(b).) Existing law also provides that acts alleging isolation do not constitute isolation if they are performed in response to a reasonably perceived threat of danger to property or physical safety. (Welf. & Inst. Code Sec. 15610.43(c).) This bill would authorize, when an elder or dependent adult has AB 2034 (Gatto) Page 6 of ? suffered abuse in the form of isolation, as defined, an adult child of the abused elder or dependent adult to petition the court to enjoin a party from interfering with visitation between the adult child and abused elder or dependent adult. This bill would prohibit the court from issuing an ex parte order for this petition. This bill would require the court to appoint counsel for the abused elder or dependent adult if a petition has been brought by an adult child to determine whether or not visitation is desired by the abused elder or dependent adult. This bill would require the adult child who brings that petition to pay for the court-appointed counsel. This bill would require, prior to the hearing on that petition, court-appointed counsel to do all of the following: interview the abused elder or dependent adult for whom the petitioner is seeking visitation; inform the abused elder or dependent adult of the contents of the petition; determine whether the abused elder or dependent adult has the capacity to consent to the proposed visitation; and determine whether the abused elder or dependent adult desires the proposed visitation. This bill would require the court-appointed counsel to report to the court, as specified, at least five days before the hearing. This bill would require a copy of that report to be given to the attorney, if any, for the adult child who has filed the petition for visitation, to the party who is alleged to be isolating the abused elder or dependent adult from the petitioner who is seeking visitation, and any other persons as the court orders. This bill would make that report confidential and available to those specified above, persons given notice of the petition who have requested the report or who have appeared in the proceedings, and their attorneys of record, and the court. This bill would provide that, if a report has been received by the court for an abused elder or dependent adult pursuant to a petition for visitation within the preceding 12 months, the court may order, upon good cause shown, that another report is not necessary or that a more limited investigation may be conducted. AB 2034 (Gatto) Page 7 of ? This bill would authorize the petition to be brought in the department of the superior court having jurisdiction over probate conservatorships, and, if the court determines that the matter should be determined in a civil action, the court may instead transfer the matter to the general civil calendar of the superior court. This bill would define "adult child" to mean an individual who is 18 years of age or older and is related to the proposed visitee biologically, through adoption, through the marriage or former marriage of the proposed visitee to the adult child's biological parent, or by a judgment of parentage entered by a court of competent jurisdiction. This bill would provide that, if a petition to enjoin a party from interfering with visitation or isolating an elder or dependent adult, then "petitioner" would mean the adult child who has filed the petition to enjoin a party from interfering with visitation between the adult child and an abused elder or dependent adult. This bill would prohibit an order issued pursuant to a petition to enjoin a party from interfering with visitation or isolating an elder or dependent adult from being issued, with or without notice, to restrain any person for the purpose of preventing a recurrence of abuse, if a declaration shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse of the petitioning elder or dependent adult. This bill would prohibit the adult child petitioner from obtaining a temporary restraining order. This bill would prohibit a request for the issuance of a temporary restraining order without notice to be granted or denied the same day that a petition to enjoin a party from interfering with visitation or isolating an elder or dependent adult is submitted to the court. This bill would authorize a respondent to file a response that explains or denies the alleged abuse or isolation. This bill would require the adult child who files a petition to enjoin a party from interfering with visitation or isolating an elder or dependent adult to pay a fee to file the petition, and this bill would authorize the court to assess a reasonable fee for that filing. AB 2034 (Gatto) Page 8 of ? This bill would require the adult child to pay a fee to law enforcement to serve an order on a petition to enjoin a party from interfering with visitation or isolating an elder or dependent adult. This bill would prohibit the court from awarding to the prevailing party costs and attorney's fees in an action brought to enjoin a party from interfering with visitation or isolating an elder or dependent adult. This bill would include legislative finding and declarations that every adult in this state has the right to visit with, and receive mail and telephone or electronic communication from, whomever he or she so chooses, unless a court has specifically ordered otherwise. COMMENT 1. Stated need for the bill The author writes: There is no legal process to settle such matters as exists with children in divorce cases. This was the case for Catherine Falk, the daughter of actor Peter Falk. Mr. Falk divorced Catherine's mother when she was 6 years old and remarried the following year. For 30 years, Mr. Falk maintained a loving relationship with Catherine despite conflicts with his second spouse. In 2008, Mr. Falk became completely incapacitated as a result of advanced dementia. Mrs. Falk, however, failed to inform Mr. Falk's children of his condition and refused to allow his children to visit their ailing father. A similar situation has presented itself with the family of radio icon Casey Kasem. . . . Kasem's daughters, Kerri and Julie Kasem, were barred by their stepmother from seeing their ailing father after regularly seeing him for more than 30 years. Julie's lawyer advised her that the courts have no jurisdiction to grant visitation rights, so she undertook the expensive and difficult process of petitioning for a conservatorship under a medical power of attorney Casey Kasem had given to Julie's physician husband. Kerri was recently granted temporary conservatorship due to medical neglect. AB 2034 (Gatto) Page 9 of ? This bill seeks to prevent adult children from being forced to undertake the long, expensive and intrusive process of filing for a conservatorship when all that is desired is a visitation. It would also prevent an elder from being forced to endure such conservatorship proceeding started solely for the purpose of a visitation. AB 2034 would create a legal mechanism for adult children to petition the court for a visitation with a parent who is not in a conservatorship when access to the parent is being denied by a caretaker. The measure amends Welfare & Institutions Code Section 15657.03. This section is part of the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA) and is the existing process provided for an elder, or a representative of an elder, to file for a restraining order against an alleged abuser. In addition, the section lays out the mechanisms for the court proceedings as well as the enforcement of any restraining orders granted by a court. The measure piggybacks on to the existing mechanisms for the purposes of allowing a court to petition for a visitation by giving standing to an adult child, as defined, to file a petition to enjoin a party from interfering with a visitation with an elder who has been isolated-defined in [Welfare & Institutions Code] Section 15610.43 as a subset of abuse under EADACPA. AB 2034 provides protections to ensure that visitation is not forced upon an elder. Among these protections are the following: -Clarifying that no restraining order may be granted by a court ex parte and that no restraining order may be issued without a full court hearing. -Providing for a court appointed counsel, paid for by the petitioning adult child, to inquire and report back to the court as to the wishes of the elder as it pertains to a visitation. The measure also would call upon the adult child who is petitioning the court for visitation to pay a filing fee for such a petition as well as to pay for the service of such an order by law enforcement. It also states that a petition for visitation may be filed in a probate court with the court having discretion to send the matter to a civil court. Finally, the bill includes findings and declarations that AB 2034 (Gatto) Page 10 of ? affirm the rights of elders to receive communications and visitation with the outside world. The Kasem Cares Foundation, in support, writes: Given the widespread incidence of divorce and remarriage in our society, there are increasing possibilities for conflicts between the second spouse and the children of the first marriage. These conflicts can become very painful when the second spouse refuses to let the children even occasionally visit their parent - even when the parent desires such visits. As a practical matter a child has little choice under current law but to seek a conservatorship over the parent against the second spouse's objection. That is not only more of a remedy than is needed for visitation, but it is a difficult and expensive case to make. We think AB 2034 strikes the appropriate balance by creating a right to petition the court for visitation, and granting the court authority to have a court investigator interview the parent to ascertain his or her wishes regarding the proposed visitation. If the parent does not want visitation, or if the court decides visitation is not in the best interests of the parent, the case is closed. However, if the parent wants visitation, the court can order it in a way that is not unnecessarily intrusive for the second spouse. 2. EADACPA protective order operation and process EADACPA authorizes a conservator or a trustee of an elder or dependent adult, an attorney-in-fact of an elder or dependent adult, a person appointed as a guardian ad litem for an elder or dependent adult, or another person legally authorized to seek a protective order on behalf of an elder or dependent adult who has suffered physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering, or the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. (Welf. & Inst. Code Sec. 15657.03.) This bill would additionally allow a petition to be brought by an adult child of an abused elder or dependent adult to enjoin a party from interfering with visitation between the adult child and the abused elder or dependent adult. To allow that AB 2034 (Gatto) Page 11 of ? visitation to occur, this bill would allow a court to issue an order enjoining a party from isolating or otherwise interfering with the visitation of the abused elder or dependent adult. This bill would also require the court to appoint counsel for the abused elder or dependent adult and require the appointed counsel to be paid for by the adult child who brings the petition. The appointed counsel would be required to submit a report to the court regarding whether the abused elder or adult has capacity and desires the proposed visitation and requires this report to be confidential, except as provided. The stated intent of this bill is to provide adult children with a court process to obtain visitation with an infirm elder or dependent adult who is unable to express his or her desire to visit with the adult child. This bill initially would have created an overbroad authorization of an adult child to petition the parent for visitation, regardless of whether the parent was infirm and potentially unable to express the desire for visitation. Accordingly, the bill was recently amended to instead provide a process for an adult child to file an EADACPA petition to seek an order to restrain an individual who is blocking access to the parent. Although these amendments focus the bill to apply to certain circumstances, rather than provide a method for an adult child to potentially harass an otherwise estranged parent, there remain numerous concerns with the operation of this bill within the existing EADACPA protective order provisions. Stakeholder groups, including Judicial Council, the California Judges Association, the Trusts and Estates Executive Committee of the State Bar, and the State Association of Public Administrators, Public Guardians, and Public Conservatees participated in discussions about the bill in order to understand the necessity to create this visitation process, the purported failings of existing law, and an attempt to craft an appropriate solution, if necessary. However, stakeholders' numerous concerns about the operation of this bill remain, some of which are as follows. a. Determination of isolation This bill would authorize the adult child to bring a petition to seek visitation with an abused elder or dependent adult. However, it is unclear whether there has to be a determination of isolation before the court can determine whether a protective order is necessary. While EADACPA provides a AB 2034 (Gatto) Page 12 of ? definition of "isolation," it does not provide a mechanism for proving it, and the bill itself does not seem to consider the procedure for proving isolation. Is the petition simply going to allege that isolation exists and then the court needs to find that before it makes any other findings? If there is a finding of isolation (which constitutes abuse), there would most likely be other consequences to the person restricting the visitation and other limitations on them, including, presumably, restrictions on their contact with the elder or dependent adult. In which case, should this bill just authorize an individual to bring an elder or dependent adult abuse claim? If a prior finding of isolation is required, there should be two proceedings - the first to determine whether the proposed visitee is isolated, and the second to determine whether to enjoin the respondent from interfering with the adult child's visit. If there is only one proceeding, as suggested by the current bill language, it would presumably require an assumed conclusion that had not yet been established. b. Ethical concerns This bill would require the court to appoint an attorney to represent the interests of the abused elder or dependent adult as well as report back to the court whether the abused elder or dependent adult has capacity and desires visitation with the petitioning adult child. However, the new provisions relating to appointing counsel for the abused elder or dependent adult are highly problematic. The appointed counsel would appear to have inherent conflicts of interest-being required to investigate and report on his or her own client while being paid by the petitioner, as well as performing fact-finding duties normally performed by an uninterested party. Also, lawyers are not experts in determining capacity of a person and whether the elder or dependent adult is unable to make his or her own decisions about visitation. Capacity is not an attorney determination to make - it is a medical opinion, and a final determination that should be made by the court. Further, there is presumably an ethical bar for an attorney appointed for the elder actually telling anyone that their purported client is incapacitated. This potentially creates a real problem as there is a potential allegation and determination of incapacity without all of the typical protections of a conservatorship. AB 2034 (Gatto) Page 13 of ? As background, in probate cases, the attorney representing the elder's interests is not also acting as a fact finder. Rather, a court appoints a court investigator to interview the individual at issue, family members, and caretakers, and report back to the court with the court investigator's findings. This bill, on the other hand, would require a court-appointed attorney to interview the elder or dependent adult and report back to the court about whether the elder or dependent adult appears isolated and desires visits with the petitioner. Given the recent financial and workload burdens of the courts, stakeholders attempted to find an alternative to the appointment of a court investigator as utilized in conservatorship and guardianship cases. Since EADACPA protective orders are normally issued in a civil action, concern was raised that there is not a similar fact finder to investigate these cases. Rather, EADACPA relies on mandatory reporters of elder and dependent adult abuse, Adult Protective Services and law enforcement to investigate these reports. The recent amendments provide that the petition may be brought in probate court and potentially transferred to civil court, even though all other EADACPA actions are civil matters, which potentially complicates additional actions brought under EADACPA for the protection of the elder or dependent adult. In any event, the general belief was the proposed visitee must have his or her own counsel appointed, or allow the visitee to hire counsel, so that his or her interests are adequately protected. c. Court-appointed conservator It is unclear how the injunctive procedures in the bill would relate to any existing conservatorship over the elder or dependent adult, particularly if the person to be enjoined is an appointed conservator. If there is an existing conservatorship, the issues would presumably need to be addressed in connection with the conservatorship. It is also unclear how the protective order would operate when the person to be protected has signed an advanced health care directive authorizing the person to be restrained to provide care. d. Determination of filing fee For ordinary elder and dependent abuse prevention petitions, AB 2034 (Gatto) Page 14 of ? there is no filing fee. For the new types of petitions created under this bill, there would be a fee, which makes sense. However, the new provision allowing for "a reasonable filing fee" raises policy questions as it leaves the amount of the fee at the discretion of the court. Historically, the Legislature has elected to codify the amount of various court fees as opposed to providing the court with the ability to charge an unknown amount. Codifying the specific amount of a fee not only allows the Legislature to evaluate the appropriateness of the amount, but, it arguably provides reassurances to the court that the allowed fee is "reasonable." e. Confusion and ambiguity in conjunction with existing protective orders This bill would insert its petition provisions into existing protective order provisions. If the Committee were to approve this bill, the new provisions should be placed in a separate, free-standing section of the Welfare and Institutions Code, because the inclusion of the provisions in the existing elder abuse prevention statute could lead to confusion and ambiguity. f. Definition of "petitioner" The EADACPA protective order statute provides that "petitioner" means elder or dependent adult to be protected by the protective orders and, if the court grants the petition, the protected person. This bill would further provide that, for purposes of a petition to enjoin a party from interfering with visitation or isolating an abused elder or dependent adult, "petitioner" would mean the adult child who filed the petition to enjoin a party from interfering with visitation between the adult child and the abused elder or dependent adult. As such, this bill would make the term "petitioner" ambiguous with the two definitions of "petitioner" since it could be read to address physical or emotional harm to the adult child and persons related to the adult child. While that reading is clearly contrary to the overall intent of the statute, this bill raises a concern that petitioners would argue that this language is meant to also protect the adult child from harm. 3. Findings and declarations AB 2034 (Gatto) Page 15 of ? This bill would include legislative finding and declarations that every adult in this state has the right to visit with, and receive mail and telephone or electronic communication from, whomever he or she so chooses, unless a court has specifically ordered otherwise. These finding and declarations do not appear to serve any legitimate purpose. Support : Kasem Cares Foundation; National Association of Social Workers Opposition : None Known HISTORY Source : Author Related Pending Legislation : None Known Prior Legislation : AB 454 (Silva, Ch. 101, Stats. 2011) added due process procedures regarding termination or modification of a protective order issued under the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA). AB 1596 (Hayashi, Ch. 572, Stats. 2009) enacted recommendations from the Judicial Council's Protective Orders Working Group for statutory procedural changes to the protective orders statutes and provided clarity and consistency for requests for protective orders. AB 225 (Beall, Ch. 480, Stats. 2008) provided that an elder or dependent adult who petitions for a protective order under the EADACPA is not required to pay a fee for law enforcement to serve an order issued by the court. SB 679 (Mello, Ch. 774, Stats. 1991) See Background. Prior Vote : Assembly Floor (Ayes 78, Noes 0) Assembly Committee on Appropriations (Ayes 17, Noes 0) Assembly Committee on Judiciary (Ayes 10, Noes 0) ************** AB 2034 (Gatto) Page 16 of ?