BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 879 (Burke)
Version: April 21, 2015
Hearing Date: June 9, 2015
Fiscal: No
Urgency: No
NR
SUBJECT
Juveniles: court proceedings: notice
DESCRIPTION
This bill would, until January 1, 2019, allow notice of juvenile
dependency hearings to be made by electronic mail if the county
and the court choose to permit service by electronic mail, and
the person to be served has consented to service by electronic
mail by signing a specified form, as provided.
BACKGROUND
The juvenile dependency system is designed to protect children
from abuse and neglect, while also preserving the rights of
parents and families. (In re Alexander, 152 Cal.App.2d 458).
Thus, any control the dependency system exercises over a child
is subject to a series of hearings and judicial oversight
designed to ensure that parental rights are only limited to the
extent necessary to protect the child.
When a child is suspected to be a victim of abuse or neglect, a
county welfare social worker is required to immediately
investigate the complaint. If the complaint is valid, the child
is removed from a parent's physical custody and may be placed in
the temporary custody of the social worker, a responsible
relative, or guardian. The social worker is required to file a
petition with the juvenile court, and the court then holds a
detention hearing to determine whether the child should be
further detained. If the child is further detained, the court
must then hold a dispositional hearing to ascertain whether
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there are child welfare services that would permit the child to
return home, and, if appropriate, order services to reunify the
child and family. In "family reunification" cases where the
child is placed in out-of-home care, and "family maintenance"
cases where the child is returned to the parent's custody, the
juvenile court must hold periodic review hearings, generally
every six months, to monitor the progress of the services being
offered to the family and the best interests of the child.
For each of the above hearings, interested parties must be
notified by mail, as specified. Generally, notice of a hearing
is required to be provided, by the social worker or probation
officer, to the mother, father or fathers, guardian(s), and the
child (if he or she is over 10 years of age), as well as any
known sibling of the child, and the attorney for the parent or
parents. This bill would additionally allow notice to be served
by electronic mail, as long the party consents to such service
and electronic mail service is permitted by the county and the
court.
CHANGES TO EXISTING LAW
Existing law establishes notice requirements for juvenile
dependency proceedings, assigning notification responsibilities
to the social worker, probation officer, and/or the clerk of the
court, depending on the hearing. (Welf. & Inst. Code Secs.
290.1-297.)
Existing law requires that certain parties be served with notice
of a juvenile dependency hearing, based on the type and purpose
of the hearing, including:
the mother;
the father or fathers, presumed and alleged;
the legal guardian(s);
the child, if he or she is ten years of age or older;
any known, dependent siblings, as specified;
adult relatives who are residing in state, as specified; and
the attorney for the parent(s) or legal guardian(s). (Welf. &
Inst. Code Secs. 290.1- 297.)
Existing law provides that service of the juvenile dependency
hearing notice must be written or oral, if the person being
served cannot read. (Welf. & Inst. Code Secs. 290.1- 297.)
Existing law allows the court to require notice of a juvenile
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dependency hearing to be made by publication in a newspaper if
designated as the most likely way to give notice to the parent,
under specified conditions. (Welf. & Inst. Code Sec. 296.)
Existing law provides that notice involving Indian children
shall be given to the minor's legal parents, guardians,
custodian and tribe by registered or certified mail, as
specified. (Welf. & Inst. Code Secs. 224.2, 290.1-297.)
This bill would allow notification in juvenile dependency
proceedings to be provided by electronic mail, as specified, if
the county and the court permit service by electronic mail and
the party to be served has consented to service by electronic
mail by signing Judicial Council Form EFS-005.
This bill would permit notice of juvenile dependency proceedings
to be provided to a child 16 years of age or older by electronic
mail only if the following requirements are met:
the city and/or county and the court permit service by
electronic mail; and
the child and the child's attorney have consented to service
by electronic mail by signing Judicial Council Form EFS-005.
This bill would permit notice of juvenile dependency proceedings
to be provided to a child who is 14 or 15 years of age by
electronic mail as well as by regular mail if the following
requirements are met:
the city and/or county and the court permit service by
electronic mail; and
the child and the child's attorney have consented to service
by electronic mail by signing Judicial Council Form EFS-005.
This bill would prohibit notice of juvenile dependency
proceedings by electronic mail in the following circumstances:
for notice of any hearing at which the county is recommending
termination of parental rights, in which case notice may only
be served by electronic mail if in addition to first-class
mail; and
any hearing where the social worker or probation officer knows
or has reason to know that an Indian child is involved.
COMMENT
1.Stated need for the bill
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According to the author:
Sending legal notice by regular mail is both time-consuming
and costly for child welfare agencies and the 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 adds an additional avenue for complying with notice
requirements in some juvenile court proceedings.
Specifically, AB 879 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.
The provisions of AB 879 are voluntary, and require all
parties - the county, the courts, and the individuals
themselves to agree to send/receive notices electronically.
2.Protects due process rights for parties without a permanent
physical address
Parents have a constitutionally protected interest in their
relationships with their children, and thus proper notice of a
proceeding which could alter that relationship has
constitutional implications. (In re DeJohn B. (2000) 84 Cal.4th
100.) Failure to provide proper notice may, therefore, represent
a structural error requiring automatic reversal. Notice, given
orally or by mail, must contain information about the following:
(1) date, time, and place of the hearing; (2) the right to
appear; (3) right to counsel; and (4) nature of the proceedings.
This bill would additionally allow a party to consent to
receiving notice by electronic mail, if the county and court
permit such service.
In support, the Judicial Council writes that this bill "will
allow courts to more efficiently provide notices to parties in
dependency cases. Often, in these cases, there is difficulty
finding physical addresses for parents of dependent children,
and some parents only have email addresses, rather than
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permanent physical addresses. Noticing parties of hearing by
email will allow for increased parental participation in
dependency proceedings, which will benefit both dependent
children and the courts in ascertaining the outcomes that are in
the best interests of the child."
People lack permanent addresses for a variety of reasons. For
some, pursuing an education may involve frequent moves. Others
have been forced to move due to unemployment or domestic
violence. However, notice, which is intended to provide parties
with the information necessary to protect their interests, is
only effective if it is actually received. The Santa Clara
County Board of Supervisors, in support, writes that these
parties will be better served by having a choice in how to
receive notice:
Email notification can facilitate and improve the delivery of
notice to parties as an email account travels with a person
and is accessible virtually anywhere. The prevalence of smart
phones, laptop computers, tablets, and free Wi-Fi hotspots
have changed and improved the way individuals stay connected.
Accordingly, this bill would allow individuals, such as a sister
who is temporarily living in a women's shelter, or a parent who
is planning on relocating to a new city for a job, to consent to
receive notice of hearings related to a sibling or their child
by electronic mail, thereby increasing their ability to
participate in these important hearings.
3.Opt in provisions for counties and parties
This bill would authorize notice to parties in dependency cases
by electronic mail only if the county and the court choose to
permit service by electronic mail and the party consents to such
service. Supporters of this bill argue that this will save the
counties and the courts money and create much needed efficiency.
The California State Association of Counties, in support,
writes, "Sending notice by regular mail is both time-consuming
and costly for child welfare agencies and the courts, and does
not always result in actual notice to the intended recipient. ?
[This bill] would create a voluntary program that county welfare
agencies, courts and individuals can opt into. Counties agree
with incorporating flexibility at the local level to decide if
this program is beneficial for their jurisdictions."
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Further, the Los Angeles County Board of Supervisors,
co-sponsor, writes, "allowing parties to voluntarily opt-in and
be provided notice via electronic mail would help to increase
the successful delivery of notice to persons who lack a
permanent address. It would also provide for a more effective
notice to other groups, such as nonminor dependents and
transition age youth, who may be residing at temporary
addresses."
Staff notes that this bill would not affect a person's right to
receive notice by mail or orally, if he or she cannot read.
This bill would instead add an additional method of delivering
notice for those persons who agree to notice by electronic mail.
Thus, individuals without electronic mail addresses would not
be forced to create an online account or purchase a computer or
smartphone, and would be able to receive notices of hearing in
the traditional manner.
4.Appropriate protections for specified parties
This bill would generally allow notice of juvenile dependency
hearings to be made by electronic mail. Certain children and
parents receiving notice about a hearing where parental rights
may be terminated would not be able to receive notice
exclusively by electronic mail.
a.Additional protections for children, 14 years of age and
older, consenting to notification by electronic mail
This bill would not authorize a child under the age of 14
years to consent to notification by electronic mail. Federal
law, the Children's Online Privacy Protection Rule, and
regulations promulgated by the Federal Trade Commission,
provide that commercial web sites and online services are
prohibited from collecting, using, or disclosing personal
information regarding minors under the age of 13, except with
parental consent. (5 U.S.C. 6501-6505; 16 C.F.R. 312.)
Therefore, allowing children under the age of 13 to consent to
notification by electronic mail could be inconsistent with
federal law. However, older children may be more likely to
receive notice when it is sent through electronic means, and
may prefer not to receive written communication from the court
in the mail.
Accordingly, this bill would provide that electronic mail can
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be used exclusively only to notify minors who are 16 years of
age and older who consent to such service, about court
hearings. Children who are 14 or 15 years of age may consent
to receive notification by electronic mail only if it is also
accompanied by notice sent by regular mail. In addition,
notification to any child by electronic mail would also
require the consent of the attorney for the child.
b.Parties in termination of parental rights proceedings
Because the termination of parental rights represents the
extinguishing of a constitutional right, it is crucial to
ensuring the fundamental fairness of dependency court
proceedings that the party actually receive notice.
Additionally, nothing should jeopardize the right of a child,
sibling, or guardian to be notified of a hearing at which
parental rights could be terminated. Accordingly, this bill
provides that when the county is recommending the termination
of parental rights, notice may be provided by electronic
format only in addition to the form of notice that is
otherwise required by law.
5.Sunset date of 2019
The provisions of this bill would remain in effect only until
January 1, 2019, unless a later enacted statute extends or
removes that date. Arguably three years provides sufficient
time for counties, courts, parties, and the Legislature to
evaluate whether authorizing notification by electronic mail for
most dependency proceedings is, in fact, resulting in cost
savings and delivery of meaningful notice to parties.
Accordingly, the author may wish to consider requiring Judicial
Council to report to the Legislature on the effectiveness of the
provisions of this bill, so that the Legislature may evaluate
whether to extend or remove the Sunset after three years.
Support : California College and University Police Chiefs
Association; California Probation, Parole and Correctional
Association; California State Association of Counties; Judicial
Council of California; Juvenile Court Judges of California; San
Bernardino County; Santa Clara County Board of Supervisors;
Urban Counties Caucus;
Opposition : None Known
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HISTORY
Source : County Welfare Directors Association of California; Los
Angeles County Board of Supervisors
Related Pending Legislation : None Known
Prior Legislation :
AB 1926 (Evans, Chapter 167, Statutes of 2010) authorized use of
electronic documents filed with or issued by the courts, and
required the Judicial Council to develop guidelines for
facilitating the use of electronic signatures in various court
documents.
AB 579 (Chu, Chapter 558, Statutes of 2003) required 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.
SB 1956 (Polanco, Chapter 416, Statutes of 2002) streamlined and
expedited notification requirements in juvenile dependency
cases.
SB 2043 (Schiff, 2000) would have modified the procedures for
providing notice to parties for hearings to terminate parental
rights. This bill was vetoed by Governor Davis who expressed
concern that terminating parental rights might become pro forma
rather than being carefully considered after notice is received
and a hearing is conducted.
Prior Vote :
Assembly Floor (Ayes 79, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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