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 AB 879 (Burke) Page 2 of ? 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 AB 879 (Burke) Page 3 of ? 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 AB 879 (Burke) Page 4 of ? 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 AB 879 (Burke) Page 5 of ? 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." AB 879 (Burke) Page 6 of ? 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 AB 879 (Burke) Page 7 of ? 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 AB 879 (Burke) Page 8 of ? 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) ************** AB 879 (Burke) Page 9 of ?