BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 1702 (Mark Stone)
Version: March 16, 2016
Hearing Date: June 14, 2016
Fiscal: No
Urgency: No
NR
SUBJECT
Juveniles: dependent children: reunification services
DESCRIPTION
This bill would provide that reunification services need not be
provided when the court finds that the parent or guardian
participated in, or consented to, the sexual exploitation of the
child, as prescribed, except if the parent or guardian was
coerced into consenting to, or participating in, the sexual
exploitation of the child.
BACKGROUND
Unless certain exceptions apply, the court must order a social
worker to provide services to reunify the family if a child is
legally removed from a parent and the parent has not voluntarily
relinquished parental rights. The heart of reunification is
Welf. & Inst. Code Sec. 361.5, which sets out the statutory
framework for reunification services and defines who receives
them. A good faith plan for reunifying the child with his or
her parents is required by both statute and due process. The
denial of services has a profound impact on the family, because
to deny parents reunification services is really an order
precluding the child's return. Thus, it is difficult to
exaggerate the importance of reunification to dependency
proceedings. (In re Luke L. (1996) 44 Cal.App.4th 670, 678.)
That being said, there are 16 circumstances that the Legislature
has deemed so egregious that the court need not order
reunification services, including when a parent has caused the
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death of another child through abuse or neglect, the child (or a
sibling of the child) has been adjudicated a dependent of the
court due to severe sexual abuse or severe physical harm, or
where a child under five years of age suffered severe physical
abuse by a parent. (Welf. & Inst. Code Sec. 361.5(b).) This
bill, seeking to protect children who have been sexually
exploited at the hand of, or because of the consent of, a parent
would add sexual exploitation of a child to the list of 16
situations where the court need not order reunification
services.
CHANGES TO EXISTING LAW
Existing law provides that a minor may be removed from the
physical custody of his or her parents and become a dependent of
the juvenile court for serious abuse or neglect, or risk of
serious abuse or neglect, as specified. (Welf. & Inst. Code Sec.
300.)
Existing law provides that unless certain exceptions apply, the
primary objective of the juvenile dependency system is
reunification of the minor with his or her family, and the court
must order the social worker to provide services to reunify
children legally removed from a parent. (Fam. Code Sec. 7950,
Welf. & Inst. Code Secs. 202, 300.2, 361.5.)
Existing law allows the court to deny reunification services in
16 situations, as specified, including:
the whereabouts of the parent are unknown;
the parent is suffering from a mental disability, as
specified;
the child or sibling of the child has previously entered the
dependency system due to physical or sexual abuse, returned to
the parent, and is being removed from the home again because
of physical or sexual abuse;
the parent caused the death of another child;
the child or sibling of the child has entered the dependency
system as a result of severe sexual or physical abuse
inflicted by the parent; and
that the child was conceived by means of sexual intercourse
with a child under the age of 14 years. (Welf. & Inst. Code
Sec. 361.5(b).)
Existing law provides that a finding of severe sexual abuse may
be based on, but is not limited to, sexual intercourse, or
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stimulation involving genital-genital, oral-genital,
anal-genital, or oral-anal contact, whether between the parent
or guardian and the child or a sibling or half sibling of the
child, or between the child or a sibling or half sibling of the
child and another person or animal with the actual or implied
consent of the parent or guardian; or the penetration or
manipulation of the child's, sibling's, or half sibling's
genital organs or rectum by any animate or inanimate object for
the sexual gratification of the parent or guardian, or for the
sexual gratification of another person with the actual or
implied consent of the parent or guardian. (Welf. & Inst. Code
Sec. 361.5(b).)
This bill would add to the list above and allow the court to
deny reunification services if the court finds that the parent
or guardian participated in or consented to the sexual
exploitation of the child, as defined, unless the parent or
guardian was coerced into consenting to, or participating in,
the sexual exploitation of the child.
COMMENT
1.Stated need for the bill
According to the author:
This narrow, targeted law change will provide additional legal
protections to foster youth who have been the victim of
commercial sexual exploitation at the hands of their own
parent or guardian. This bill will also provide new
protections in state law that ensure foster youth who have
been commercially sexually exploited by their parent or
guardian are not placed at risk of further exploitation by the
very system that is supposed to protect them.
2.Consistent with existing policy protecting children from
sexual abuse
Commercial sexual exploitation of children is a growing problem.
Be it through print, film, live performance, or prostitution,
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an estimated 300,000 domestic children are exploited every year,
and are most likely to be sexually exploited by their families
or family friends for monetary gain. (Daley, Hagy, and Mukasey,
Commercial Sexual Exploitation of Children: What Do We Know and
What Do We Do About It?(2007) National Institute of Justice.)
In the United States, prostitution is a major lucrative
enterprise in which pimps make millions of dollars in profits.
The most profitable legal paradigm involves "pimps" - adults
who use psychological methods to target minors because they
are "easier to manipulate, work harder to earn money and are
more marketable." The minors may reach quotas of as much as
$400 a day and then turn over all of the money to the adult.
The majority of these child prostitution cases in the United
States involve native, as opposed to foreign, youth. According
to the United States Senate, 200,000 to 300,000 domestic
minors are at risk of exploitation by America's commercial sex
industry. Moreover, the average age in which minors are
trafficked for commercial sex is between twelve and fourteen
years old. Children as young as five years old have been sold
for sex, some even by their own parents. In attempts to escape
sexual abuse in their homes, many kids run away from home only
to be lured into the commercial sex industry. They become at
risk for all forms of sex trafficking, including pornography,
stripping, modeling, and prostitution. (Butler, Cheryl Nelson
Kids For Sale: Does America Recognize Its Own Sexually
Exploited Minors As Victims Of Human Trafficking? (2014) 44
Seton Hall L. Rev. 834.))
Under existing law there are 16 circumstances that the
Legislature has deemed so egregious that the court need not
order reunification services. (Welf. & Inst. Code Sec.
361.5(b).) These exceptions to reunification demonstrate how the
dependency system's primary goals of ensuring the safety of
children and preservation of family are balanced. Thus, when a
child has been severely physically or sexually abused by a
parent, the court need not offer reunification services.
Another situation where reunification services may not be
ordered is where a child has entered the dependency system due
to physical or sexual abuse (caused by the parent or another
person because of the parent's negligence), and was returned
home after the provision of reunification services, only to be
abused again.
Recognizing the ubiquity of commercial child sexual
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exploitation, this bill would additionally allow the court to
deny reunification services when a parent or guardian
participated in or consented to the sexual exploitation of the
child, unless the parent or guardian was coerced into consenting
to, or participating in, the sexual exploitation of the child.
This bill would define "sexual exploitation" by referencing
provisions in the Penal Code, which include conduct involving
matter depicting a minor engaged in obscene acts, permitting or
encouraging a child to engage in prostitution or any live
performance involving obscene sexual conduct. This bill would
also include in the definition of sexual exploitation a person
who causes, induces, or persuades, or attempts to cause, induce
or persuade a minor to engage in a commercial sex act. (See
Penal Codes Secs. 236.1(c) and 11165.1(c).)
3.Exempts a parent who was threatened or otherwise forced to
consent to the exploitation of his or her child
This bill would not allow the court to deny reunification
services "in which the parent or guardian was coerced into
consenting to, or participating in, the sexual exploitation of
the child." By recognizing that a parent may have consented to
the sexual exploitation of a child only because of coercion,
defined as "compelling by force, intimidation, or authority,
especially without regard for individual desire or volition,"
this bill acknowledges that parents may be as exploited as the
children they are obligated to protect. Yet the concept of
"consent" has legal significance. Consent, generally requires
that a person knowingly, and of their own volition, give
permission for a specified act, and is therefore incompatible
with actions taken as a result of threats, coercion, or duress.
Thus, "consent" given as a result of coercion is arguably not
"consent" at all. Accordingly, the author offers the following
amendment replacing "consent" with "permitted," which would
appropriately give the court discretion to examine the
circumstances surrounding instances of child sexual exploitation
and determine when to deny, and when to order, reunification
services.
Author's amendments:
1) Page 9, line 32, after "guardian" insert "knowingly"
2) Page 9, line 32 strike "consented to," and insert
"permitted"
3) Page 9, line 36, after "guardian," insert
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"demonstrated by a preponderance of the evidence that he
or she"
4) Page 9, line 36 strike "consenting to" and insert
"permitting"
These amendments should help ensure that victim-parents can get
the services they need to protect themselves and their children
from further abuse. In the event that a parent who was forced
into permitting the sexual exploitation of his or her child is
offered reunification services, staff notes that protections in
existing law help ensure the protection of the child, as
discussed below.
a.A child need not be placed in a parent's custody during
reunification services
A good faith plan for reunifying the child with his or her
parents is required by statute and by due process. In
addition, the approach taken to reunify the child with his or
her family should not be mechanical; instead, a reunification
plan "must be appropriate for each family and be based on the
unique facts relating to that family." (In re Dino E. (1992) 6
Cal.4th 1768, 1777.) An appropriate plan will contain time
frames and time limits that suit the circumstances. For
example, not every parent needs a full-time drug program, or
52 weeks of domestic violence classes, or a parenting class.
Visitation, however, is a vital component of reunification,
and must typically be provided if the child is placed in
foster care after the dispositional hearing and the court
provides the parent with reunification services. (In re
Alvin R. Jr. (2003) 108 Cal.4th 962, 972.)
Accordingly, the fact that reunification services are ordered
does not necessarily mean that the child will ever be returned
to the custody of the offending parent. The court has
routinely emphasized that compliance with reunification
services and the case plan is a different issue than the
child's best interest, which is always the court's primary
focus and what it looks to when determining whether to return
a child to the parent's custody. (See In re Jacob P. (2007)
157 Cal. 4th 819; Constance K. v. Superior Court (1998) 61
Cal. 4th 689, 704; and Blanca P. v. Superior Court (1996) 45
Cal. 4th 1738, 1748.)
b.Any party, or the court, may seek termination of reunification
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services
In general, the court is only obligated to order six months of
reunification services. If the child is not returned to the
parents by that six-month date, and the court cannot make the
significant findings required to continue reunification (e.g.,
the parent is not availing herself to the court-ordered
services, criminal history subsequent to the child's removal,
efforts and/or progress of parent to create a stable home for
the child), the court can terminate reunification services at
six months and refer the matter for a permanent plan
implementation hearing. (Welf. & Inst. Code Sec. 361.5(a).)
Furthermore, any party, including a child who is a dependent
of the juvenile court, may petition the court to terminate
reunification services if it appears that a change of
circumstance or new evidence exists that justifies termination
of reunification services, or an action of the parent creates
a substantial likelihood that reunification will not occur.
(Welf. & Inst. Code Sec. 388(c).) Accordingly, if
reunification services are not improving the chances that the
parent will be able to create a safe home for the child, the
court or any party (i.e., the child, the parent, or the
county) may seek to terminate reunification services and start
the process of finding the child a new, safe home.
Support : American Academy of Pediatrics; Butte County
Department of Employment and Social Services; California
Association of Marriage and Family Therapists; California
Catholic Conference; California Coalition for Youth; California
Immigrant Policy Center; California Police Chiefs Association;
California Probation, Parole, and Correctional Association;
California State Association of Counties; County of Madera;
County of San Bernardino; Los Angeles Deputy Probation Officers'
Union, AFSCME, Local 685; Los Angeles Professional Peace
Officers Association; National Association of Social Workers;
Urban Counties of California; Ventura County Board of
Supervisors;
Opposition : None Known
HISTORY
Source : County of Alameda; County Welfare Directors Association
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of California
Related Pending Legislation : None Known
Prior Legislation : None Known
Prior Vote :
Assembly Floor (Ayes 76, Noes 0)
Assembly Human Services Committee (Ayes 6, Noes 0)
Assembly Judiciary Committee (Ayes 8, Noes 0)
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