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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