BILL ANALYSIS                                                                                                                                                                                                    





                             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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