BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
SB 179 S
Senator Runner B
As Amended March 23, 2009
Hearing Date: March 31, 2009 1
Welfare & Institutions Code 7
KB:jd 9
SUBJECT
Juvenile law: referee
DESCRIPTION
This bill would:
provide that a party who is present at the termination of
rights hearing before a commissioner or referee may be served
at that time with the findings, the order, and an explanation
of the right to appeal the termination order;
shorten the time period to appeal a judgment in juvenile
proceedings from 60 to 30 days;
(This analysis reflects author's amendments to be offered in
committee.)
BACKGROUND
Many children are removed from their homes each year due to
abuse or neglect, and placed in the juvenile dependency court
system. Through various proceedings, the dependency court
determines whether family reunification services should be
provided, whether parental rights should be terminated, and
formulates a permanent placement plan for the child. The
process for notification of termination orders and a parent's
right to appeal are prescribed by statute. Until the appeals
period has expired, adoptive placement cannot begin and adoption
subsequent to the termination of parental rights cannot become
final.
This bill, sponsored by the Los Angeles County Board of
(more)
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Supervisors, seeks to make several modifications to the appeals
process for orders terminating parental rights in juvenile
dependency proceedings.
CHANGES TO EXISTING LAW
1. Existing law requires a referee to hear cases assigned to him
or her by the presiding judge of the juvenile court. (Welfare
& Institutions Code Section 248.)
Existing law requires the referee to furnish to the presiding
judge and the minor, if the minor is 14 years of age or older
or makes that request, and to serve upon the minor's attorney,
a written copy of the referee's findings and order. (Welfare
& Institutions Code Section 248.) Existing law also requires
the referee to furnish to the minor and the parent, guardian,
or adult relative, with the findings and the order, a written
explanation of the right of those persons to seek review of
the order by the juvenile court. (Welfare & Institutions Code
Section 248.)
Existing law requires that service made pursuant to these
provisions be made by mail. (Welfare & Institutions Code
Section 248.)
This bill would allow service be made in court on a minor,
parent, or guardian who is present in court on a date that the
findings and order of the referee are made.
This bill would require service of the findings and order by
mail to a minor, parent, or guardian who was not present in
court when those findings and order were made, except as
specified, and would require the mailing to include the
written explanation of the right to seek review of the order.
2. Existing law provides that all orders of a juvenile court
referee become immediately effective, except as specified.
(Welfare & Institutions Code Section 250.)
Existing rules of court provide that a notice of appeal in
juvenile cases must be filed within 60 days after the
rendition of the judgment or the making of the order being
appealed. In matters heard by a referee not acting as a
temporary judge, a notice of appeal must be filed within 60
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days after the referee's order becomes final. (California
Rules of Court, Rule 8.400.)
Existing rules of court provide that an order of a referee not
acting as a temporary judge becomes final 10 calendar days
after service of a copy of the order and findings has been
provided to the parent, guardian, and minor's counsel.
(California Rules of Court, Rule 5.540.)
This bill would require that a notice of appeal be filed
within 30 days after the rendition of judgment or the making
of an order being appealed, or, in matters heard by a referee
not acting as a temporary judge, within 30 days after the
referee's order becomes final.
This bill would provide that an order of a referee becomes
final no later than 180 days after it is made.
COMMENT
1. Stated need for the bill
The author states:
Following the issuance of a TPR order, if an appeal is filed by
a birth parent, adoptive families face the distressing
possibility of losing children they love and plan to adopt. The
appeal period is marked by a high level of uncertainty and
anxiety for families who have developed strong emotional
attachments to these children. SB 179 will reduce appellate
delays and minimize the emotional stress endured by prospective
adoptive families; will advance timely permanency; and will
result in more happy endings for these children and their
prospective families.
2.This bill would allow for in-person service of findings and an
order to terminate parental rights
Under current law, notices of orders for the termination of
parental rights (TPR) and a written explanation of the right to
seek review of the order must be served via certified mail to
the birth parents. This bill would instead allow notices of the
TPR order and appeal rights to be personally served to minors,
parents or guardians in court. If any of these individuals are
not present in court the day the order is issued, service would
then be made by mail to the party's last known address or to the
party's counsel.
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Personal service to a party at a termination hearing is
preferable to mail service because it provides a greater
likelihood that the party received actual notice of the order
and was informed of their right to appeal. This is particularly
important in cases that involve transient parents who may not
have a last known address, making mail service ineffective. In
addition, personal service is less costly since no postage is
required to complete service. Thus, allowing courts to provide
service at the time the order is made to parties who are present
is beneficial to both the court and the parties involved. For
those who are not in attendance, service would be made by mail,
as it is under current law.
Section 248.5 of the Welfare & Institutions Code provides that
all written findings and orders of the court must be served by
the clerk within three judicial days of their issuance. In
order to clarify that this time frame applies to mail service as
provided for in this bill, the author has offered the following
amendment:
On page 2, line 28, after "mail" insert: "within the time
period specified in Section 248.5."
3.This bill would shorten the time period to appeal termination of
parental rights from 60 to 30 days
The California Rules of Court, Rule 8.400 governs appeals in
juvenile cases. Pursuant to Rule 8.400, a notice of appeal must
be filed within 60 days after the rendition of the judgment or
the making of the order being appealed. In matters heard by a
referee not acting as a temporary judge, a notice of appeal must
be filed within 60 days after the referee's order becomes final
under Rule 5.540(c).
This bill would shorten the time frame to appeal judgments in
juvenile proceedings from 60 to 30 days. In a random sampling
of 251 termination orders made over a two-month period by the
Juvenile Court in Los Angeles County, only 34 (approximately
13.55%) appealed. Of these 34 cases, 22 notices of appeal were
filed within 30 days, and 12 were filed after 30 days. No
appeal was filed at all in 217 (approximately 86%) of the cases
reviewed in the random sampling. These numbers indicate that,
at least in Los Angeles County, the majority of termination
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orders are never appealed. In the instances where the orders
are appealed, the majority of notices are filed within 30 days.
According to the author and sponsor, establishing a 30 day
appeal period would benefit all parties, because of the more
expeditious review of the order. While the expeditious review
of an order would be beneficial to all parties in providing a
sense of finality or, in case of a reversal, an alternate
permanency plan, it is important to allow for a sufficient
appeals time period so as not to significantly impair a parent's
ability to seek review of an order terminating their parental
rights. A 30 day time period is reasonable in that it provides
parents with sufficient time to seek review, assuming that
notice of the order, and of their right to appeal, was promptly
provided (by mail or in person). Further, the random sampling
conducted by the Juvenile Court in Los Angeles indicates that
the general practice already is to file appeals within 30 days.
4.Author's amendments would remove provisions which would make
referee orders final after 180 days
Pursuant to California Rule of Court 5.540, an order of a
referee not acting as a temporary judge becomes final 10
calendar days after service of a copy of the order and findings
has been provided to the parent, guardian, and minor's counsel.
As previously stated, a notice of appeal must be filed within 60
days after the order becomes final. (California Rule of Court
8.400.) Thus, the 60 day appeals timeframe does not begin to
run until the court mails the parent a notice of the order
terminating parental rights and an explanation of their right to
seek review of the order.
According to the author and sponsor, in rare instances, notice
of the order terminating parental rights is not sent to the
parent(s), leaving children and their prospective adoptive
parents in a permanent state of uncertainty. This bill seeks to
resolve this issue by providing that orders terminating parental
rights made by a commissioner or referee become final 180 days
after they are made, regardless if notice of the order was ever
served. The author and sponsor state that parents are notified
of the hearing to terminate parental rights, and if they have
shown no interest in the matter within 180 days, the order
should become final in the interest of allowing adoptions to
proceed without fear of an untimely challenge.
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Because this bill seeks to cut the timeframes for appeals in
half, the provision of notice to parents of the termination of
their parental rights and an explanation of their right to seek
review becomes extremely important. Even if a parent does not
show up and fails to ascertain the outcome of the hearing,
notice should always be provided before an order terminating
parental rights becomes final. Furthermore, the underlying
problem identified does not appear to warrant a statutory
change. The problem is not necessarily the statutorily
prescribed process, but that court clerks inadvertently do not
send out notices in rare instances. Court clerks should ensure
that notice is always sent to parties in a timely manner, which
would make the order final and trigger the appeals process.
The author has offered the following amendment which would
remove these provisions from the bill:
On page 3, delete SECTION 2, lines 7 through 23, inclusive
Support : California State Association of Counties; California
Welfare Directors Association; San Bernardino County Board of
Supervisors; Family Law Section of the State Bar (if amended)
Opposition :None Known
HISTORY
Source : Los Angeles County Board of Supervisors
Related Pending Legislation : None Known
Prior Legislation : None Known
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