BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
AB 519 A
Assembly Member Leno B
As Amended March 30, 2005
Hearing Date: June 7, 2005
Welfare and Institutions Code 5
MJM:rm 1
9
SUBJECT
Parental Rights: Reinstatement After Termination
DESCRIPTION
This bill would permit, under limited circumstances, a
child whose parents have had their rights terminated may
petition the court to have the rights reinstated.
Additionally, this bill would provide the juvenile court
the authority to issue ex parte order protecting parents,
guardians, and caregivers even if an order protecting the
child is not being issued simultaneously.
BACKGROUND
Children may become dependent children of the juvenile
court if they are abused or neglected. [Welfare and
Institutions Code Section 360.] If reunification efforts
have failed and the juvenile court finds that the dependent
child is likely to be adopted, the court shall terminate
the parental rights to the dependent child and order that
the child be placed for adoption. [Welfare and
Institutions Code Section 366.26.] Parental rights must be
terminated before a child may be placed for adoption, and
the only avenue for attacking the termination of parental
rights is a timely appeal of the order.
A juvenile court may issue an order protecting a dependent
child, and may also issue an order protecting a parent,
guardian or caregiver at the same time it issues an order
(more)
AB 519 (Leno)
Page 2
protecting the child.
CHANGES TO EXISTING LAW
1. 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 would provide that a child who has not been
adopted within three years after parental rights have
been terminated may petition the court to reinstate the
parental rights.
This bill would provide that a child may petition for
reinstatement of parental rights sooner than three years
if all parties agree that the child is no longer
adoptable.
This bill would authorize the juvenile court to reinstate
parental rights if it finds by a preponderance of the
evidence that the child is no longer likely to be adopted
and that reinstatement of parental rights is in the
child's best interest.
2. 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 would allow the juvenile court to issue an ex
parte order protecting a parent, guardian, or caregiver
whether or not the child also needs protecting.
COMMENT
1. Need for the bill
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
AB 519 (Leno)
Page 3
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:
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 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
Judicial Council, co-sponsor of this bill, asserts that
while juvenile courts currently have the ability to issue
AB 519 (Leno)
Page 4
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.
2. Invitation for legislation in In re Jerred H.
In re Jerred H. (2004) 121 Cal. App. 4th 793, involved a
14-year-old boy who had been removed from his mother's
care because his mother's substance abuse prevented her
from caring for him. He was placed with his stepfather,
who was separated from his mother. Jerred stipulated to
the termination of parental rights, including the rights
of Jerred's mother and any alleged fathers, in
anticipation of being adopted by his stepfather.
However, before the adoption was completed, Jerred was
removed from his stepfather's home because of unsanitary
conditions. Jerred's long term placement plan was
changed from adoption by his stepfather to long-term
foster care.
Jerred petitioned the court requesting parental rights be
reinstated. He also requested that his stepfather be
declared Jerred's presumed father. If parental rights
were restored and the stepfather were determined to be
Jerred's presumed father, then Jerred would be able to
live with his stepfather again. Without these legal
maneuverings, Jerred would remain in foster care and his
stepfather would have no legal rights to maintain contact
with Jerred. The trial court apologized to Jerred and
denied his request because it had no authority to
consider the reinstatement of parental rights. Jerred
appealed.
AB 519 (Leno)
Page 5
The appellate court expressed the same dissatisfaction as
did the trial court. Noting that its hands were tied by
the statute, the court of appeal concluded it had no
jurisdiction to set aside the termination of parental
rights despite a strong desire to help Jerred.
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 the of the aspiring presumed
father 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
minor's best interest. In all likelihood, Jerred will
be left a "legal orphan," despite the recognized
disfavor of such status. 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. However, the wisdom of
qualifying the present finality of a section 366.26
order in such a manner is for the Legislature to
evaluate. Unless and until it does so, the courts
must respect the present system.
Supporters point to a host of court decisions in which
the appellate courts have struggled with the severe
results mandated by Section 366.26. In In re Ronald V.
and In re David H. the court concluded it had no
authority to entertain petitions by parents to modify an
order terminating their parental rights despite the fact
that circumstances had changed dramatically since the
order was entered. In Ronald V. the mother had agreed to
termination on the understanding that her friend would
adopt her child. However, the friend died before the
adoption could take place. In David H. the parents
agreed to termination based on representations by the
social worker that their son would be placed in a loving,
stable home. Shortly after their rights were terminated,
they discovered not only that the adoptive family was
bankrupt and on the verge of divorce, but that the
adoptive father was an abusive alcoholic. In other
cases, the circumstances changed while an appeal of the
AB 519 (Leno)
Page 6
termination order was pending and so the courts have
considered the additional evidence. [See In re JaysonT.
(2002) 97 Cal. App. 4th 75 and In re Elise K. (1982) 33
Cal. 3d 138.] However, recently the Supreme Court has
held that evidence of changed circumstances during an
appeal should not be considered by the appellate court.
[In re Zeth S. (2003) 31 Cal. 4th 396.]
3. This bill would allow a court to modify a termination
order under limited circumstances
The solution to the legal orphan problem proposed by this
bill is narrowly tailored to allow a child to petition
for reinstatement of parental rights, but prevent a
parent from collaterally attacking a termination order
and stalling an adoption. The inflexibility of the
current law is designed and needed to prevent a parent
from collaterally attacking termination order and
preventing or stalling an adoption that is in the child's
best interest. To continue to achieve that goal, but
allow for reinstatement when appropriate, this bill would
limit the right to petition to the child. It would also
require that at least three years have passed since the
termination order was issued or that all parties
stipulate that the child is no longer adoptable.
Finally, the court may only reinstate parental rights if
the child has proven by a preponderance of the evidence
that he or she is not likely to be adopted and that
reinstatement would be in his or her best interest.
Support: County Welfare Directors Association of
California; Family Law Section of the State Bar of
California; Children's Advocacy Institute; National
Center on Youth Law; Los Angeles Affiliate of the
National Association of Counsel for Children;
Juvenile Court Judges of California
Opposition: None Known
HISTORY
Source: Judicial Council of California and Children's Law
Center of Los Angeles
Related Pending Legislation: None Known
AB 519 (Leno)
Page 7
Prior Legislation: None Known
Prior Vote: Assembly Floor (71 Ayes, 0 Noes)
Assembly Judiciary (8 Ayes, 0 Noes)
**************