BILL ANALYSIS                                                                                                                                                                                                    Ó



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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