BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 1425 (Negrete McLeod)
As Amended May 30, 2012
Hearing Date: June 19, 2012
Fiscal: No
Urgency: Yes
NR
SUBJECT
Juveniles: Dependent Children
DESCRIPTION
This bill would prohibit a court from granting a hearing to
modify a denial of reunification services, or a change in a
custody or visitation order, for parents whose children were
removed for extreme physical abuse, sexual abuse, or because the
parent caused the death of another child, as specified, unless
it appears that the best interest of the child would be promoted
by the proposed change in order.
This bill would prohibit a court from granting the modification
unless the court finds, by clear and convincing evidence that
the proposed change is in the best interest of the child.
BACKGROUND
When severe child abuse, or a risk of abuse, comes to the
attention of the dependency system, the child is immediately
removed from a parent's physical custody. The court must hold an
initial detention hearing to determine whether the child should
be detained. If the child is not returned to the parent or
guardian, the court must determine at a jurisdictional hearing
within the next few weeks whether the child has suffered or is
in substantial risk of serious harm and thereby falls within the
dependency court's jurisdiction. If the child is further
detained, the court must then hold a dispositional hearing,
within ten days of the jurisdictional hearing, to ascertain
whether there are child welfare services that would permit the
child to return home pending the next hearing, and, if
appropriate, order services to be provided as soon as possible
(more)
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to reunify the child and family. (Welf. & Inst. Code Sec.
319(f).)
Thus, generally courts attempt to reunite dependent children
with their parents. However, there are cases where the facts
demand additional protections for the child, and the court need
not order reunification services. In these specific cases, the
court needs to find, by clear and convincing evidence, a
specified condition meriting a denial of reunification services.
Cases where the court may deny reunification services include
situations where: the parent's whereabouts are unknown; the
parent is mentally disabled and unlikely to be able to care for
the child adequately within the statutory period of time; the
parent has caused the death of another child through abuse or
neglect; the child or the child's sibling was removed from the
parent's custody for severe physical or sexual abuse. When a
court denies reunification services, generally it may begin
terminating a parent's rights within three months.
Parents who wish to challenge a denial of reunification services
may petition the court to modify the order. Because this may be
the last chance a parent has to establish rights to his or her
child, these petitions to modify an order after a denial of
reunification services are construed liberally in the
petitioner's favor. If a hearing is granted, the petitioner
must show that a change of circumstances warrants a change in
the court order, and that the request to change the court order
is in the child's best interests. If the court finds by a
preponderance of the evidence that the proposed change is in the
best interests of the child, the court must modify the order.
Reunification with a family generally takes place within 12
months from the date of detention, and the court reviews each
case at least every six months. Parents are required to meet
goals outlined in a case plan submitted by the social worker.
Where an exception to reunification applies, or if at the end of
the reunification time frame the court finds that reunification
is not in the child's best interest, the court must determine a
different permanency plan for the child, which may involve
adoption or legal guardianship. At this point, the court may
begin terminating the parent's rights to the child.
This bill would apply only to parents who have been denied
reunification because the parent caused the death of another
child, severe abuse to a child under five, or the child was
removed from the parent's custody because of severe physical or
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sexual abuse to that child or a sibling of the child. For these
specified situations, this bill would require the court to find,
by clear and convincing evidence, rather than a preponderance of
the evidence, that the proposed change in the order denying
reunification services or the custody or visitation order would
be in the best interests of the child.
CHANGES TO EXISTING LAW
Existing law provides that a minor may be removed from the
physical custody of his or her parents for serious abuse or
neglect, or risk of serious abuse or neglect including:
the child has suffered or there is a substantial risk that the
child will suffer, serious physical harm inflicted
nonaccidentally by the;
the child has suffered or there is a substantial risk the
child will suffer serious physical harm or illness as a result
of neglect;
the child has suffered or there is a substantial risk that the
child will suffer serious emotional damage as a result of the
conduct of the parent;
the child has been sexually abused, or there is a substantial
risk that the child will be sexually abused by the parent,
guardian, or member of the household, or the guardian has
failed to adequately protect the child from sexual abuse when
the parent knew or should have known the child was in danger;
the child is under the age of five and has suffered severe
physical abuse, as specified;
the child's parent or guardian caused the death of another
child through abuse or neglect;
the child has been left without any provision for support, or
physical custody of the child has been voluntarily
surrendered, as specified;
the child has been subjected to an act(s) of cruelty by the
parent or guardian or a member of his or her household, or the
parent or guardian has failed to adequately protect the child
from acts of cruelty, as specified; or
the child's sibling has been abused or neglected and there is
a substantial risk that the child will be abused or neglected,
as specified. (Welf. & Inst. Code Sec. 300.)
Existing law provides that unless certain exceptions apply, as
specified, the court must order the social worker to provide
services to reunify the family if the child is legally removed
from a parent. (Welf. & Inst. Code Sec. 361.5.)
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Existing law provides that if the court finds one of the
following conditions by clear and convincing evidence,
reunification services need not be provided to a family:
when a parent has voluntarily relinquished the child, as
specified;
the parent's whereabouts are unknown;
where a parent is suffering from a metal disability that
renders him or her unable to adequately care for the child;
where the child or a sibling of the child have been
adjudicated a dependent of the court as a result of physical
or sexual abuse
if a parent or guardian of the child has causes the death of
another child through abuse or neglect; or
that the child has been adjudicated as a result of severe
sexual abuse or the infliction of severe physical harm to the
child, a sibling, or half sibling by a parent or guardian, and
the court finds that it would not benefit the child to pursue
reunification services. (Welf. & Inst. Code Sec. 361.5(b).)
Existing law permits a party to petition the court to terminate
reunification services if there is a change in circumstances
justifying termination of court ordered reunification services
or if an action or inaction of a parent or guardian creates a
substantial likelihood that reunification will not occur. (Welf.
& Inst. Code Sec. 388(c).)
Existing law permits a party to file for reconsideration of an
order terminating or denying reunification services if the
petitioner shows that changed circumstances require a
modification of the court's order. (Welf. & Inst. Code Sec.
388(c).)
Existing law provides that a court must order a hearing on the
merits of a petition filed under Welfare and Institutions Code
Section 388 if it appears that the best interests of the child
may be promoted by the proposed change of an order, recognition
of a sibling relationship, termination of jurisdiction, or clear
and convincing evidence supporting revocation or termination of
court-ordered reunification services (Welf. & Inst. Code Sec.
388(d).)
Existing law requires the court to construe the petition for
modification of an order liberally, in favor of granting a
hearing. (Cal. Rules of Court, Rule 5.570(a).)
This bill would prohibit a court from granting a hearing to
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modify a denial of reunification services, or modification in a
custody or visitation order, for parents whose children were
removed for extreme physical or sexual abuse, or because the
parent caused the death of another child, as specified, unless
it appears that the best interests of the child would be
promoted by the proposed change in order.
This bill would prohibit a court from granting the modification
unless the court finds, by clear and convincing evidence that
the proposed change is in the best interest of the child.
COMMENT
1.Stated need for the bill
In support of this bill the author writes that this bill would
address the "most egregious factual circumstances under which a
parent can be denied reunification services, to require when a
parent files a petition to modify those orders, that the matter
be heard under the same clear and convincing evidence standard
that �the] court used originally to deny reunification. It is
rare that a change of parental circumstances within the 120 days
would be persuasive when the abuse was found to be so severe and
injurious. However it is common for parent's attorneys to file
such petitions prior to the ? hearing and the lower standard of
proof results in most petitions being heard, resulting �in]
delays of permanency to the most severely abused children."
2.Evidentiary burden increased in specified dependency cases
This bill would increase the evidentiary burden for a parent who
petitions the court to modify an order related to a dependent
child, when that parent has been denied reunification services
because the parent caused the death of another child, severely
abused a child under five, or inflicted severe physical or
sexual abuse on the child or a sibling of the child.
Specifically, this bill would require the court to find, by
clear and convincing evidence, that the proposed change would be
in the best interest of the child when these parents seek to
modify orders related to reunification services, custody, and
visitation of their children.
Under existing law, when a parent seeks to modify a court order
prior to a hearing to terminate the parent's rights to the
child, existing law is liberally construed in favor of the
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petitioning parent. Thus, if the petition presents any evidence
that a hearing would promote the child's best interest, the
court must order a hearing. (In re Angel B. (2002) 97 Cal. 4th
454, 461.) Further, if at the hearing, the court finds, by a
preponderance of the evidence, that the proposed change would be
in the child's best interest, the court must grant the
modification. This process reflects the two main goals of the
California dependency system: to ensure the safety and
well-being of children; and to preserve and strengthen the
family.
However, under existing law a higher evidentiary standard
applies when a court denies reunification services. In these
situations a court must find by clear and convincing evidence,
not a preponderance of the evidence, that a specified condition
has occurred including child abandonment, extreme physical
abuse, or sexual abuse. (See Background and Existing Law.) If
one of these 15 circumstances applies, the court need not go
through a best interest analysis because the safety of the child
is clearly compromised by any contact with the parent.
This bill addresses three circumstances for denying
reunification services, which are arguably the most egregious of
the 15 reasons listed under statute. When a court has denied
reunification services pursuant to one of these three
circumstances, this bill would require the court to find by
clear and convincing evidence that the proposed change would be
in the best interest of the child before ordering a
modification. As noted above, petitions to modify an order are
construed liberally in favor of the parent, and the evidentiary
standard required at hearing is arguably low. However, in
regards to modifying court orders, it seems inconsistent to
apply the same burden to parents who have subjected their
children to different kinds and levels of abuse. Arguably,
granting liberal interpretation of a petition and allowing a low
evidentiary burden at hearing for parents who have caused the
death of another child or subjected a child to serious physical
or sexual abuse, may expose these dependent children to further
harm. Thus, requiring the parents to show, and the court to
find, by clear and convincing evidence that the proposed change
of an order is in the child's best interest will empower courts
with a greater ability to protect children of severe abuse.
3.Permanency and stability in dependent child placement
By increasing the burden on specified parents seeking to modify
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denial of reunification services, custody, or visitation orders,
this bill would arguably expedite the final placement of
dependent children.
Placing a child in a permanent home is a critical aspect of
juvenile dependency. For many children, these final orders
signal an end to litigation and foster care, and hopefully a new
life in a nurturing home. Parents who have been denied
reunification services typically have three months to petition
the court for a modification of that order or a visitation
order. Reunification services typically take place in the 12
months following detention of the child, but may take up to 18
months. During this time, dependent child remain in a temporary
home. After reunification services have been provided, the
court will determine if family reunification is in the best
interest of the child. (See Background.)
The author argues that it is unlikely that in three or less
months, there will be a change of circumstances significant
enough to merit change of the court's order, yet parents'
counsel routinely file these petitions for modification. Often
the orders are not modified, but the petitions must still be
liberally construed in favor of the parent, resulting in a
hearing on the petition. Thus, these petitions and hearings may
add a significant amount of time before a child is able to be
placed in a permanent home.
By requiring proof by clear and convincing evidence that the
proposed change is in the best interest of the child, this bill
would imply a higher pleading standard in petitions to modify
orders for parents who have been denied reunification services
for three specified reasons. If, from the face of a petition it
is unlikely that a parent will be able to prove by clear and
convincing evidence a change in circumstances meriting a change
in the court's order, the court need not grant the hearing.
Arguably, bypassing the time required for ineffectual hearings
will expedite permanency for severely abused children.
4.Confusing language of bill: suggested amendment
The Executive Committee of the State Bar of California (FLEXCOM)
has taken a support if amended position on this bill, and
requests that the text of the bill be modified to clarify when a
parent would need to petition the court to modify an existing
order. In response to that request, the following amendment
would require a parent to petition the court prior to an order
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terminating parental rights.
Suggested amendment:
Page 27, line 22, strike "prior to the hearing set pursuant,"
Page 27, line 23, strike "to Section 366.26 or"
Support : Los Angeles District Attorney
Opposition : None Known
HISTORY
Source : County of San Bernardino
Related Pending Legislation : None Known
Prior Legislation :
AB 2341 (Maze, Chapter 457 Statues of 2008) specified minimum
time periods for reunification, allowed any party to petition
the court to terminate reunification services for changed
circumstances, and prohibited a court from terminating
reunification services unless it found at a hearing clear and
convincing evidence that such a circumstance exists.
AB 706 (Committee on Human Services, Chapter 120 Statutes of
2009) technical, clarifying, and conforming changes to
provisions related to reunification services and juvenile court
review hearings concerning children who are dependents of the
juvenile court and their parents or guardians.
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