BILL ANALYSIS Ó
AB 879
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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
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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.
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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.)
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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
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(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
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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.
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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
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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
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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.
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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
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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
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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