BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 519|
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THIRD READING
Bill No: AB 519
Author: Leno (D)
Amended: 9/2/05 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 6-0, 6/7/05
AYES: Dunn, Morrow, Ackerman, Cedillo, Figueroa, Kuehl
NO VOTE RECORDED: Escutia
ASSEMBLY FLOOR : 71-0, 4/7/05 (Passed on Consent) - See
last page for vote
SUBJECT : Parental rights: reinstatement after
termination
SOURCE : Judicial Council of California
Childrens Law Center of Los Angeles
DIGEST : This bill permits, under limited circumstances,
a child whose parents have had their rights terminated to
petition the court to have the rights reinstated.
Additionally, this bill authorizes the juvenile court to
issue ex parte order protecting parents, guardians, and
caregivers even if an order protecting the child is not
being issued simultaneously.
Senate Floor Amendments of 9/2/05 add double-jointing
language to avoid chaptering out provisions in SB 218
(Bowen), AB 1338 (Nation), and AB 1412 (Leno).
CONTINUED
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Senate Floor Amendments of 8/17/05 make the following
clarifying changes that resolve all outstanding concerns
with the bill:
1.Clarify that a child may petition to have parental rights
reinstated if three years have passed since parental
rights were terminated and the court has determined
adoption is no longer the permanent plan for the child,
or if the child and the Department of Social Services or
the adoption agency responsible for the custody for the
child stipulate that the child is no longer likely to be
adopted. Also clarify that the child, if age 12 or
older, must sign the petition unless good cause is shown
why the child cannot do so.
2.Require the court to make factual findings supporting the
reinstatement of parental rights if the permanent plan,
after reinstatement, is not reunification with the parent
or legal guardian.
3.Require the court, in order to reinstate parental rights,
to find by clear and convincing evidence that the child
is no longer likely to be adopted and that reinstatement
is in the child's best interest.
4.Clarify that the bill is to be applied retroactively.
5.Make other technical and grammatical corrections.
ANALYSIS : Existing law provides that once parental
rights are terminated, the order is final and binding on
all parties and may only be attacked via a timely, direct
appeal. [Welfare and Institutions Code Section 366.26.]
This bill provides that a child who has not been adopted
within three years after parental rights have been
terminated, and for whom the court has determined that
adoption is no longer the permanent plan, or is no longer
likely to be adopted, may petition the court to reinstate
the parental rights.
This bill provides that a child may petition for
reinstatement of parental rights sooner than three years if
the State Department of Social Services of licensed
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adoption agency that is responsible for custody and
supervision of the child and the child stipulate that the
child is no longer likely to be adopted. A child over 12
years of age is required to sign the petition in absence of
a showing of good cause as to why the child could not do
so.
This bill authorizes the juvenile court to reinstate
parental rights if it finds by clear and convincing
evidence that the child is no longer likely to be adopted
and that reinstatement of parental rights is in the child's
best interest. The bill provides that if the court
reinstates parental rights over a child who is under 12
years of age and for whom the new permanent plan will not
be reunification with a parent or legal guardian, the court
shall specify that factual basis for its findings that it
is in the best interest of the child to reinstate parental
rights. This bill is intended to be retroactive and
applies to any child who is under the jurisdiction of the
juvenile court at the time of the hearing regardless of the
date parental rights were terminated.
Existing law allows a juvenile court to issue an ex parte
order protecting a child.
Existing law allows a juvenile court to issue an ex parte
order protecting a parent, guardian, or caregiver
simultaneously with an ex parte order protecting a child.
This bill allows the juvenile court to issue an ex parte
order protecting a parent, guardian, or caregiver whether
or not the child also needs protecting.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 9/2/05)
Judicial Council of California (co-source)
Children's Law Center of Los Angeles (co-source)
County Welfare Directors Association of California
Family Law Section of the State Bar of California
Children's Advocacy Institute
National Center on Youth Law
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Los Angeles Affiliate of the National Association of
Counsel for Children
Juvenile Court Judges of California
ARGUMENTS IN SUPPORT :
Reinstatement of Terminated Parental Rights
The Judicial Council of California and the Children's Law
Center of Los Angeles, co-sponsors of this bill, hail this
bill as an appropriate and reasonable solution to the
"legal orphan" problem that arises when a child has had his
or her parental rights terminated in anticipation of
adoption, but the adoption is never completed for some
reason. According to the author's office:
"California law provides no remedy for these children.
Adoption is the preferred placement plan for abused
and neglected children who cannot be reunified with
their parents. In order to free a child for adoption,
the juvenile court must terminate parental rights
based on a finding that the child is likely to be
adopted. The reality, however, is that older
children, children with special physical or emotional
needs, and children who are part of a sibling group
are often only likely to be adopted by a specific,
identified prospective parent. For too many of these
youth, after the court terminates parental rights, the
adoptive placements fail and these children end up
becoming legal orphans -- severed from all family
ties."
An October 2003 report by the California Department of
Social Services discloses that, as of July 30, 2002, there
were 5,846 legally freed children in the state not yet
placed in adoptive homes. Of these children, 913 no longer
had a case plan goal of adoption. The vast majority of
these children were living in long-term foster care. The
only remedy for these children under current California
law, laments the Children's Law Center of Los Angeles
(CLC), is a timely appeal of the termination order. And
even then, if an adoption has failed since the termination
order was issued, it may not be considered by the appellate
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court. [See In re Zeth S. (2003) 31 Cal. 4th 396.]
CLC contends that children who are never adopted should not
have to suffer the permanent loss of their legal
relationships to their parents, siblings and other
relatives, including their rights to parental support and
to inherit from family members. Nor should they bear the
stigma of being labeled a legal orphan.
Ex Parte Orders Protecting Parents, Guardians and
Caregivers
The Judicial Council of California, co-sponsor of this
bill, asserts that while juvenile courts currently have the
ability to issue ex parte orders protecting parents,
guardians and caretakers if the court is simultaneously
issuing an order protecting the child, the court cannot
issue an order protecting the parent, guardian or caretaker
if the child is not also at risk.
"There are situations that arise where the parent or
the caregiver requires protection, but the child is not
at risk. In such cases the court needs the authority
to act in a timely manner to protect the family and
further the goal of reunification. Currently the court
must direct the party to another court to seek
protection; this change will streamline that process
and allow the juvenile court jurisdiction over all of
the issues relevant to the child and family whose
welfare it must oversee."
ASSEMBLY FLOOR :
AYES: Aghazarian, Arambula, Baca, Bass, Benoit, Berg,
Bermudez, Blakeslee, Bogh, Calderon, Canciamilla, Chan,
Chavez, Chu, Cogdill, Cohn, Coto, Daucher, De La Torre,
DeVore, Dymally, Emmerson, Evans, Garcia, Goldberg,
Hancock, Harman, Haynes, Jerome Horton, Shirley Horton,
Houston, Huff, Jones, Karnette, Keene, Klehs, Koretz, La
Malfa, Laird, Leno, Leslie, Levine, Liu, Matthews, Maze,
McCarthy, Montanez, Mullin, Nakanishi, Nava, Negrete
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McLeod, Niello, Oropeza, Parra, Pavley, Plescia, Sharon
Runner, Ruskin, Saldana, Salinas, Spitzer, Strickland,
Torrico, Tran, Vargas, Villines, Walters, Wolk, Wyland,
Yee, Nunez
NO VOTE RECORDED: Frommer, Gordon, La Suer, Lieber,
Mountjoy, Nation, Richman, Ridley-Thomas, Umberg
RJG:cm 9/2/05 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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