BILL ANALYSIS Ó
AB 879
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CONCURRENCE IN SENATE AMENDMENTS
AB
879 (Burke)
As Amended July 7, 2015
Majority vote
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|ASSEMBLY: | 79-0 | (April 27, |SENATE: | 40-0 | (July 13, 2015) |
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Original Committee Reference: JUD.
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.
The Senate amendments make a technical change.
EXISTING LAW:
1)Establishes the notice requirements for juvenile dependency
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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.
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.
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.
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.
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.
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 Welfare and Institutions Code
Section 224.2.
7)Pursuant to federal law, specifically the Children's Online
Privacy Protection Rule (COPPA), and regulations promulgated
by the Federal Trade Commission (FTC), commercial Web sites
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.
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FISCAL EFFECT: None
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. 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. 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 United States (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, the
initial petition hearing where the child has not been detained,
the jurisdictional hearing, and the review hearing, 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 this 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.
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(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
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),
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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.
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, existing law 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."
Very similar language is used in most of the other sections in
this bill.
This 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.
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For any hearing at which a termination of parental rights may
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, this 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, this 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.
Analysis Prepared by:
Alison Merrilees / JUD. / (916) 319-2334 FN:
0001222
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