BILL ANALYSIS Ó AB 879 Page 1 Date of Hearing: April 14, 2015 ASSEMBLY COMMITTEE ON JUDICIARY Mark Stone, Chair AB 879 (Burke) - As Introduced February 26, 2015 PROPOSED CONSENT (As Proposed to be Amended) SUBJECT: JUVENILES: COURT PROCEEDINGS: ELECTRONIC HEARING NOTICE KEY ISSUE: SHOULD NOTICES THAT ARE REQUIRED FOR JUVENILE DEPENDENCY HEARINGS BE provided BY ELECTRONIC MAIL, IN LIEU OF NOTIFICATION BY MAIL, TO PARTIES WHO CONSENT TO THIS form OF notification, INCLUDING CERTAIN MINORS, UNDER SPECIFIED CONDITIONS? SYNOPSIS When it appears that a child comes within the jurisdiction of the juvenile dependency court because he or she may be abused, abandoned, or neglected and the social worker determines that the child should be kept in custody for his or her protection, the social worker is required to file a petition with the juvenile court. A hearing is scheduled and notice of the hearing is required to be provided to the mother, father or fathers, guardian or guardians, and the child (if he or she is over 10 years of age), as well as any known sibling of the AB 879 Page 2 child, the attorney for the parent or parents, or guardian or guardians of the child. Current law requires the probation officer, social worker, or court clerk (depending on the type of hearing and stage of the proceedings) to provide notice of the juvenile dependency proceedings via U.S. Mail, Certified Mail or Newspaper Publication. This bill would allow the required hearing notice to be served in written form by electronic mail, as long as such service is permitted by the county, or city and county and the court; and the person to be served has consented to service of electronic mail by signing Judicial Council Form EFS-005. In regards to a hearing that could involve the termination of parental rights, however, the notice would have to be delivered by a means authorized under current law, and could also be delivered by electronic mail if the party opted to be notified of court proceedings in that manner. The author contends that sending legal notices by regular mail is time-consuming and costly for child welfare agencies and the courts. The author and sponsors further contend that the current forms of service do not always result in actual notice to the intended recipients because many individuals involved in dependency court proceedings lack permanent addresses. The author, co-sponsors, and supporters further contend that allowing notice of hearings to be made by electronic mail will promote not only due process by improving efficiency and efficacy of notification, but also court modernization efforts. In response to concerns that it may not be appropriate to notify all minors who are entitled to be notified of court proceedings via electronic mail, the bill provides that electronic mail can only be used to notify minors who are 14 years of age and older and establishes additional safeguards to ensure actual notice and informed consent. Finally, the bill requires the court to inquire whether parties who appear in court and who have opted to receive notices by electronic mail are, in fact, receiving notices and to verify the person's current electronic mail address. There is no known opposition to the bill. AB 879 Page 3 SUMMARY: Adds an additional avenue for complying with notice requirements in some juvenile court proceedings. Specifically, this bill allows notification of most juvenile dependency court proceedings to be provided by electronic mail when the party to be served has consented to service by electronic mail by signing Judicial Council Form EFS-005. For hearings that involve the possible termination of parental rights, however, notice must be provided as required under current law and may additionally be given by electronic mail. EXISTING LAW: 1) Establishes the notice requirements for juvenile dependency proceedings, assigning notification responsibilities to the social worker, probation officer or clerk of the court, depending on the purpose and progression of the hearing proceedings. (Welfare and Institutions Code Sections 290.1- 297. All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.) 2) Specifies the necessary parties to be served with notice of a child dependency hearing, based on the purpose and progression of the impending hearing proceedings. (Sections 290.1- 297.) 3) Provides that service of the dependency hearing notice must be written or oral. If the person being served cannot read, notice shall be given orally. (Sections 290.1- 297.) 4)Allows the court to require notice of a dependency hearing to be made by publication in a newspaper designated as most likely to give notice to the parent, under specified conditions. (Section 296.) AB 879 Page 4 5) Outlines the type of information which must be included in a hearing notice, and whether or not the petition must accompany the hearing notice. (Sections 290.1- 297.) 6) If the probation officer, social worker or court knows or has reason to know that an Indian child is involved, notice shall be given in accordance with Section 224.2. (Sections 290.1- 297.) 7) Pursuant to federal law, specifically the Children's Online Privacy Protection Rule (COPPA), and regulations promulgated by the Federal Trade Commission (FTC), commercial websites and online services (including mobile apps) are prohibited from collecting, using, or disclosing personal information (including name and date of birth) regarding minors under the age of 13, except with parental consent. (5 U.S.C. 6501-6505; 16 C.F.R 312.) FISCAL EFFECT: As currently in print this bill is keyed non-fiscal. COMMENTS: When it appears that a child comes within the jurisdiction of the juvenile dependency court because he or she may be abused, abandoned, or neglected and the social worker determines that the child should be kept in custody for his or her protection, the social worker is required to file a petition with the juvenile court. (Section 290.1.) A hearing is scheduled and notice of the hearing is required to be provided to the mother, father or fathers, guardian or guardians, and the child (if he or she is over 10 years of age), any known sibling of the child, and the attorney for the parent or parents, or guardian or guardians, and in some cases the district attorney or the probate department. (Section 290.1 (a).) Current law requires the probation officer, social worker, or court clerk AB 879 Page 5 (depending on the type of hearing and stage of the proceedings) to provide notice of the juvenile dependency proceedings via U.S. Mail, Certified Mail or newspaper publication. Those same parties are notified of each relevant hearing of the juvenile court as the case proceeds (assuming that the court determines the child is within its jurisdiction). The means of notification are described in each code section that is specific to the proceeding (i.e. the initial petition hearing where the child has been detained (Section 290.1), the initial petition hearing where the child has not been detained (Section 290.2), the jurisdictional hearing (Section 291), and the review hearing (Section 292), among others). Each type of hearing has different notice requirements in terms of who is required to give the notice, the method and content of the notice, and when the notice must be served. This bill amends those provisions to allow written notice of all dependency hearings, except those at which the department is recommending termination of parental rights, to be served by electronic mail. It allows service by electronic means to all parties, except children, for whom the bill has special rules (explained below). The Importance of Notice in Dependency Matters. Notice is both a constitutional and statutory imperative. (In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1114.) In juvenile dependency proceedings, due process requires parents be given notice that is reasonably calculated to advise them an action is pending and afford them an opportunity to defend. (Id., at p. 1115, citing In re DeJohn B. (2000) 84 Cal.App.4th 100, 106.) Failure to comply with the notice requirements in a dependency case can result in a mistake of constitutional dimension. (Ibid.) In Jasmine G., the social worker spoke with the mother eight times after the setting order, and met with her once, but never told her about any of the upcoming hearings. Although a status AB 879 Page 6 report had a new address for the mother, there was no effort to notify her at the new address, or to inform her trial attorney of that address. The appellate court held that "the failure to attempt to give a parent statutorily required notice of a selection and implementation hearing is a structural defect that requires automatic reversal. It denies a parent the opportunity to confer with her attorney, prepare her case, or defend against the loss of parental rights. Without this, we cannot say the loss of parental rights-or the hearing-is fundamentally fair. The absence of any reasonable attempt to give notice goes well beyond trial error. It is not merely a mistake that hinders a party's ability to present the case effectively, but rather a flaw in the systemic framework that denies that party the opportunity to be heard at all. It goes to the basic fairness of the structural scheme. (In re Jasmine G., supra, 127 Cal.App.4th at p. 1116 [emphasis added].) Reliable Methods of Providing Notice. Current law requires notices of court hearings to be sent via regular U.S. mail. As an alternative, Certified U.S. mail, personal service, or newspaper publication (for parents whose last known address cannot be determined) are also allowed. While not foolproof, service by U.S. mail is considered to be reliable (See Evidence Code Section 641, providing "A letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail"). When a letter is not "correctly addressed" (because the addressee has moved, for example), however, notice by mail is completely ineffective. Many families involved in dependency matters are in unstable or insecure situations in terms of housing, schooling and employment. Therefore, notification by a method other than U.S. Mail may be the best way to notify them about court hearings. Arguably, many people, especially those in stress, change their email addresses less often than their mailing addresses. AB 879 Page 7 Importance of Being Able to Opt In (Or Not). While more individuals have access to computers and smart phones, not all do. Therefore, it is critically important that the ability to receive notice of court hearings via electronic mail remains optional. Allowing parties to voluntarily choose to be notified of many court hearings by electronic mail would help increase successful delivery of notice, especially to those non-minor dependents, foster youth, and transition youth who may be residing at temporary physical addresses. Electronic mail delivery is also consistent with the courts' existing goal of improving modernization, efficiency and cost savings. As an added bonus, service of notices by electronic means is also environmentally friendly. Special Rules For Children and Hearings Where Parental Rights May Be Terminated. Some minors have the right to be personally notified (i.e. not through their parents, foster parents, guardians, social workers, or attorneys) of court proceedings. For example, Section 292 provides that for a review hearing, "Notice of the hearing shall be given to the following persons: . . . (4) The child, if the child is 10 years of age or older; (5) Any known sibling of the child who is the subject of the hearing . . . If the sibling is 10 years of age or older, the sibling, the sibling's caregiver, and the sibling's attorney." (Section 292(a).) Very similar language is used in most of the other sections in this bill. In a case where a child is 10 years of age or older and is entitled to written notice served by U.S. mail, it seems inappropriate - at least in some cases - for the child to be notified by electronic mail. Children under 13 years of age are generally prohibited from having electronic mail accounts. Pursuant to federal law, specifically the Children's Online Privacy Protection Rule (COPPA), and regulations promulgated by the Federal Trade Commission, commercial websites and online services (including mobile apps) are prohibited from collecting, using, or disclosing personal information (including name and AB 879 Page 8 date of birth) regarding minors under the age of 13, except with parental consent. (5 U.S.C. 6501-6505; 16 C.F.R. 312.) Therefore, the youngest children who are entitled to written notice clearly should not be able to consent to be notified of court proceedings by electronic mail. At the same time, older children may be more likely to receive notice when it is sent via electronic means, and may prefer not to receive written communication from the court in the mail. Based upon these concerns, the bill establishes that electronic mail can only be used to notify minors who are 14 years of age and older about court hearings. It also establishes additional safeguards to ensure actual notice and informed consent. Specifically, it allows electronic mail notification to a child when all of the following requirements are satisfied: (1) The county, city and county, and the court choose to permit service by electronic mail; (2) The child is 16 years of age or older; (3) The child consents to service by electronic mail by signing Judicial Council Form EFS-005; and (4) The attorney for the child consents to service of the minor by electronic mail by signing Judicial Council Form EFS-005. For slightly younger children (14 and 15 years old), written notice may be served on the child by electronic mail as well as by regular mail if all of the following requirements are satisfied: (1) The county, city and county, and the court choose to permit service by electronic mail; (2) The child is 14 or 15 years of age; (3) The child consents to service by electronic mail by signing Judicial Council Form EFS-005; and (4) The attorney for the child consents to service of the minor by electronic mail by signing Judicial Council Form EFS-005. These amendments seem like a reasonable way to achieve the author's intent while also protecting due process. For any hearing at which a termination of parental rights may AB 879 Page 9 occur, existing rules for notice must be followed, but notice may also be provided in electronic format. Termination of parental rights is an extremely sensitive and serious undertaking that has life-altering consequences for parents, as well as children. (See In re Jasmine G., supra, 127 Cal.App.4th at p. 1116.) Because effective notice (or at least a good-faith effort at providing notice) is crucial to ensuring the fundamental fairness of dependency court proceedings, nothing should jeopardize the right of a parent, child, sibling, or guardian to be notified of a hearing at which parental rights could be terminated. Therefore, the bill provides that when the department is recommending the termination of parental rights, notice may be provided by electronic format in addition to the form of notice that is otherwise required by law (personal service, certified mail with return receipt, etc.). Finally, the bill requires the court to inquire, in cases where it has authorized service of written notice to be made by electronic means, whether the parties who are in court and who have opted to receive notices by electronic mail are, in fact, receiving notices and whether their electronic mail addresses have changed. This is very similar to the inquiry that courts are required to make now about the permanent addresses of the parties who are in court. (Section 316.1.) According to the author: Sending legal notice by regular mail is both time-consuming and costly for child welfare agencies and courts, and does not always result in actual notice to the intended recipient. In Los Angeles County alone, on average 30 dependency hearings per day in 20 courtrooms are conducted, leading to approximately 12,000 hearings per month. For individuals without a permanent address, receiving court notices in a timely fashion in order to engage in a hearing is a challenge. AB 879 Page 10 While many individuals in dependency courts may lack a permanent address, in most cases they have access to a private e-mail address. Unlike a mailbox, an e-mail account travels with a person and is accessible virtually anywhere. The provisions of AB 879 are voluntary, and require all parties - the county, the court, and the parties themselves - to agree to receive notices electronically. Therefore, this bill seems to be a reasonable way to modernize service of notices while protecting due process. ARGUMENTS IN SUPPORT: According to the Los Angeles Board of Supervisors: California has a complex system when providing hearing notices. AB 879 would modernize the process of providing notice in child welfare dependency court hearings, would help to ensure parties receive notice, and would help to provide more timely permanence, stability and safety for children. Specifically, it would allow counties, the courts and individuals to opt-in to an electronic notice system to permit an individual to receive notices of scheduled court hearings electronically through a designated e-mail address. It would allow counties and the courts to design and tailor appropriate systems, which would facilitate and improve successful delivery of notices to parties who lack a permanent address or who frequently move. Previous Related Legislation: SB 2043 (Schiff) 2000, Vetoed by the Governor, modified the procedures for providing notice to parties for hearings to terminate parental rights. Governor Davis cited in his veto message that the bill's changes might result in a lessening of the careful consideration, after notice AB 879 Page 11 and hearing that is necessary in such cases. SB 1956 (Chapter 416, Stats. of 2002) streamlines and expedites the notification requirement for juvenile dependency court cases. AB 579 (Chapter 558, Stats. of 2003) requires that notice of juvenile dependency court hearings be provided to any known sibling who is 10 years of age or older, of the child who is the subject of the hearing. AB 1926 (Chapter 167, Stats. of 2010) authorizes use of electronic documents filed with or issued by the courts. Among other things, AB 1926 requires the Judicial Council to develop guidelines for facilitating the use of electronic signatures in various court documents. REGISTERED SUPPORT / OPPOSITION: Support Los Angeles County Board of Supervisors (co-sponsor) County Welfare Directors Association of California (co-sponsor) California Colleges and University Police Chiefs California Probation, Parole and Correctional Association AB 879 Page 12 California State Association of Counties Judicial Council of California Juvenile Court Judges of California Opposition None on file Analysis Prepared by:Alison Merrilees / JUD. / (916) 319-2334