BILL ANALYSIS
AB 519
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 519 (Leno)
As Amended September 2, 2005
Majority vote
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|ASSEMBLY: |71-0 |(April 7, 2005) |SENATE: |38-0 |(September 6, |
| | | | | |2005) |
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Original Committee Reference: JUD.
SUMMARY : Allows the court to act in the best interest of a
child regarding the area of relinquishment of parental rights.
Specifically, this bill allows:
1)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 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)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.
The Senate amendments 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 (DSS) or the
adoption agency responsible for the custody for the child
stipulate that the child is no longer likely to be adopted, and
make other conforming changes, and add chaptering out language.
EXISTING LAW :
1)Provides that the juvenile court has no power to set aside,
change, or modify an order terminating parental rights once
made.
2)Authorizes the court to issue ex parte orders protecting a
parent, legal guardian or current caretaker of a dependent
AB 519
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child if the court is simultaneously issuing an order to
protect the child.
AS PASSED BY THE ASSEMBLY , this bill contained similar
provisions regarding the relinquishment of parental rights.
FISCAL EFFECT : None
COMMENTS : The primary purpose of Welfare and Institutions Code
Section 366.26 (i) was 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 prohibits reinstatement of
parental rights for children for whom there has been a
significant change of circumstances and who will never get the
benefit of being adopted into a new family. Creating a
permanent class of legally orphaned children is contrary to
California's public policy and its mandate to act in the best
interest of abused and neglected children.
A number of court decisions express frustration with the
finality of Welfare and Institutions Code Section 366.26
(i) in fulfilling the court's duty to act in the best
interest of the child. In the recent case of Jerred H.,
the First District Court of Appeal 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.
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
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the court 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.
Amendments taken in the Senate 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 DSS or the adoption agency
responsible for the custody for the child stipulate that the
child is no longer likely to be adopted. Other conforming
changes are made including: that the child, if age 12 or older,
must sign the petition unless good cause is shown why the child
cannot do so; that the court make factual findings supporting
the reinstatement of parental rights if the permanent plan,
after reinstatement, is not reunification with the parent or
legal guardian; that the court, in order to reinstate parental
rights, 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; and that this bill is to be applied
retroactively.
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334
FN: 0013107