BILL ANALYSIS
AB 519
Page 1
Date of Hearing: March 29, 2005
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
AB 519 (Leno) - As Introduced: February 16, 2005
PROPOSED CONSENT (As Proposed to be Amended)
SUBJECT : DEPENDENT CHILDREN: TERMINATION OF PARENTAL RIGHTS
KEY ISSUES :
1) SHOULD "legally-orphaned" children be allowed to petition
the juvenile court to reinstate parental rights if, after the
passage of time, they can show that they are no longer likely
to be adopted and that reinstatement would be in their best
interest?
2) SHOULD THE JUVENILE COURT'S AUTHORITY TO ISSUE EX PARTE
PROTECTIVE ORDERS TO PROTECT THE PARENTS, GUARDIANS, OR
CARETAKERS OF CHILDREN UNDER ITS JURISDICTION IN A DEPENDENCY
PROCEEDING BE STRENGTHENED?
SYNOPSIS
This non-controversial bill allows a child to petition for
reinstatement of parental rights in very limited and clearly
defined circumstances where the child would otherwise remain a
legal orphan. In order to reinstate parental rights, the
juvenile court is required under the bill to find that changed
circumstances exist such that the child is no longer likely to
be adopted and that reinstatement of parental rights is in the
child's best interest. In addition, the bill authorizes the
juvenile court to issue ex parte protective orders to protect
the parents, guardians, or caretakers of children under its
jurisdiction in a dependency proceeding.
SUMMARY : Strengthens the court's authority to act in the best
interest of a child in carefully limited circumstances.
Specifically, this bill :
1)Allows a child who has been legally freed for at least three
years or who all parties stipulate is no longer adoptable, to
petition the juvenile court to reinstate parental rights. If
the court finds that changed circumstances exist such that the
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child is no longer likely to be adopted and that reinstatement
of parental rights would be in the child's best interest, the
court shall reinstate parental rights.
2)Allows the juvenile court to issue an ex parte order to
protect a parent, legal guardian, or caretaker of a child who
is the subject of a dependency petition.
EXISTING LAW :
1)Provides that the juvenile court has no power to set aside,
change, or modify an order terminating parental rights once
made. (Welfare and Institution Code section 366.26(i).)
2)Authorizes the court to issue ex parte orders protecting a
parent, legal guardian or current caretaker of a dependent
child if the court is simultaneously issuing an order to
protect the child.
FISCAL EFFECT : As currently in print this bill is keyed
nonfiscal.
COMMENTS : In support of this bill, the author notes that the
primary purpose of Welfare and Institutions Code section 366.26
(i) is to prevent a parent from collaterally attacking an order
terminating parental rights, thereby delaying the child's right
to finality and a permanent adoptive home. However, as written,
the statute also inadvisably appears to prohibit reinstatement
of parental rights for children for whom there has been a
significant change of circumstances, and who regrettably will
never get the benefit of being adopted into a new family.
Creating a permanent class of legally orphaned children is
obviously contrary to California's public policy objectives and
the state's desire that courts always be able to act in the best
interest of abused and neglected children.
A number of court decisions have expressed understandable
frustration with the apparent finality of W&I Section 366.26 (i)
in fulfilling the court's duty to act in the best interest of
the child. (See, e.g., In re J.I. et al. (2003) 108 Cal.App.4th
903, 915: "The only reason a juvenile court terminates parental
rights is to free the child for adoption. If the child is not
adoptable, termination merely renders the child a legal orphan."
In re Jayson T. (2002) 97 Cal.App.4th 75, 88, disapp. on other
grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414: "If
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parental rights are terminated, children should go to a better
situation, a permanent adoptive home, not a worse one (permanent
foster care and no parent)." In re Elise K. (1982) 22 Cal.3d
138, 150 (conc. opn. of Bird, C.J.): "[T]he state has a
substantial continuing interest in the welfare of a child,
especially a child whom the state has mistakenly - it turns out
- rendered parentless.")
In the recent case of Jerred H., supra, 121 Cal.App.4th 793, the
First District Court of Appeal appropriately invited the
California Legislature to consider allowing juvenile courts
limited discretion to reinstate parental rights where the child
would otherwise be left a legal orphan. In that case,
14-year-old Jerred filed a Welfare and Institutions Code section
388 petition to reinstate parental rights after Jerred's
adoption by his stepfather fell through. Jerred still wanted a
relationship with his stepfather, whom he asked the court to
recognize as his presumed father. The termination order had
already become final, however, so no legal basis for relief was
possible. Both the juvenile and appellate courts lamented that
the law did not allow them to grant Jerred's wish. In fact, the
court of appeal went out of its way to underscore the inadequate
result compelled by the existing statute:
We join the trial court and county counsel in observing the
harshness of the result we reach. Because the court has no
jurisdiction, the shared desire of the minor and of [his
former stepfather] must be frustrated despite the fact that
the adoption that was anticipated at the time of the
section 366.26 hearing is no longer likely, and regardless
of whether granting the request would be in the minor's
best interest. In all likelihood, Jerred will be left a
'legal orphan,' despite the recognized disfavor of such
status. [Citations.] To avoid such an unhappy
consequence, legislation may be advisable authorizing
judicial intervention under very limited circumstances
following the termination of parental rights and prior to
the completion of adoption (Id. at p. 799, emphasis added.)
Additional Clarification in the Bill : Under current law, the
juvenile court has the authority to issue protective orders to
protect the parents, guardians, or current caretakers of a
child, even where the child does not reside with that person,
but only if the court is simultaneously protecting the child.
This limitation can be unnecessarily restrictive on the court
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and is not in keeping with the spirit of court consolidation.
When the juvenile court becomes aware of the need to protect the
parent or caregiver of a child under its jurisdiction, it should
have the authority to do so expeditiously and should not be
required to direct the individual needing protection to another
court. This change will improve access to protection for those
involved in dependency matters, and allow the court to address
problems confronting the family that may be a threat to
reunification for the child in an effective and efficient
manner.
REGISTERED SUPPORT / OPPOSITION :
Support
Children's Law Center of Los Angeles (sponsor)
Judicial Council of California (co-sponsor)
Opposition
None on file
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334