BILL ANALYSIS
AB 3051
Page 1
Date of Hearing: April 1, 2008
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
AB 3051 (Committee on Judiciary) - As Amended: March 24, 2008
SUBJECT : DEPENDENCY HEARINGS: CHILD PARTICIPATION
KEY ISSUE : SHOULD foster children be provided with the
opportunity to attend, and participate in, their dependency
hearings, WHERE CRITICAL, LIFE-CHANGING DECISIONS ARE MADE?
SYNOPSIS
This Committee bill helps ensure that children in foster care
who so desire are able to attend and participate in their
dependency court hearings. The bill stems from an in-depth
investigatory series that ran in the San Jose Mercury News in
February, which discovered, among other things, that children
"whose interest are supposed to determine dependency case
outcomes are often regularly excluded from the court process.
Judicial officers issue life-altering rulings without ever
seeing the children whose futures are being decided." This
bill seeks to help children who want to participate in their
dependency hearings by (1) providing that children in
attendance at these hearings can address the court and fully
participate in the hearing, and (2) if a child 10 or older is
not present, and has not been properly notified or given an
opportunity to attend, requiring the court to continue the
hearing to allow the child to be present, unless the court
finds that it is in the best interest of the child not to do
so. This bill strictly limits continuances to ensure hearings
are held timely, and allows the court to issue any orders
necessary to ensure that a child who wants to attend his or her
hearing may do so.
This bill is consistent with recommendations from the Pew
Commission on Children in Foster Care and draft recommendations
of the Judicial Council Blue Ribbon Commission which find that
both children and the judicial decisions benefit when children
actively participate in their court hearings. It is also
supported by the Children's Law Center of Los Angeles and the
Youth Law Center. There is no known opposition.
SUMMARY : Provides children subject to dependency hearings a
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greater opportunity to attend and participate in their
hearings. Specifically, this bill :
1)States the intent of the Legislature that:
a) All children who want to attend their juvenile court
hearings be given the means and the opportunity to attend,
and that these hearings be set to accommodate children's
schedules;
b) Juvenile courts promote communication with, and the
participation of, children in attendance at hearings of
which they are the subject;
c) Children attending these hearing leave the hearing with
a clear understanding of what decisions were made by the
court and why;
d) The Administrative Office of the Courts help promote
these objectives.
2)Requires the court to allow a child present at his or her
juvenile court hearing who so desires to address the court
and participate in the hearing.
3)Requires the court in a juvenile court hearing, where the
child who is the subject of the hearing is 10 years of age or
older and is not present at the hearing, to determine whether
the minor, not only was properly notified, but also was given
an opportunity to attend.
4)If the child was not properly notified or, if he or she
wished to be present and was not given an opportunity to be
present, requires the court to continue the hearing to allow
the child to be present, unless the court finds that it is in
the best interest of the child not to continue the hearing.
Requires the court to continue the hearing only for that
period of time necessary to provide notice and secure the
presence of the child. Permits the court to issue any orders
necessary to ensure that the child has an opportunity to be
present.
5)States that nothing in the legislation shall prevent or limit
any child's right to attend or participate in the juvenile
court hearing.
EXISTING LAW :
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1)Requires that, among others, children 10 and over receive
notice of dependency hearings, including the initial petition
hearing, jurisdictional hearings and review hearings.
(Welfare & Institutions Code Sections 290.1-295. All further
statutory references are to that code unless otherwise
stated.)
2)Allows a minor who is the subject of a juvenile court hearing
and is entitled to notice of the hearing to be present at the
hearing. Allows that minor to be represented at the hearing
by counsel of his or her choice. If the minor is 10 or older
and not present at the hearing, requires the court to
determine whether the minor was properly notified of his or
her right to attend the hearing. (Section 349.)
3)At the hearing to terminate parental rights or establish
guardianship, requires the court to consider the wishes of
the dependent child and to act in the child's best interests.
Requires the court, if the child who is 10 and over is not
present at the hearing, to determine whether the minor was
properly notified of his or her right to attend the hearing
and inquire as to the reason why the child is not present.
(Section 366.26(h).)
4)States the policy of the State that all children in foster
care have the right to attend court hearings and speak to the
judge. (Section 16001.9.)
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
COMMENTS : This Committee bill stems from an in-depth
investigatory series that ran in the San Jose Mercury News this
past February. That year-long investigation discovered an
under-funded dependency court system, with exceedingly high
caseloads for judges and lawyers representing children and
parents. As a result, children and their parents, the series
discovered, are often treated with indifference. In
particular, the series found: "Children whose interest are
supposed to determine dependency case outcomes are often
regularly excluded from the court process. Judicial officers
issue life-altering rulings without ever seeing the children
whose futures are being decided." (Karen de S?, Broken
families, broken courts Day 1: How rushed justice fails our
kids , San Jose Mercury News (Feb. 10, 2008).)
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The series profiled Zairon Frazier, who lived in eight shelters
and groups homes while in foster care. Despite being advised
not to bother attending his hearings, he wanted to be there, so
he traveled by bus and BART to be at his hearings.
Unfortunately, there was no consideration of his schedule when
his emancipation hearing -- the hearing that releases youth
from supervision by the dependency court and from the foster
care system -- was set on the same day as his high school final
exams. He took his finals and missed the hearing. Two years
later, after a reporter questioned why his emancipation hearing
had not been rescheduled to accommodate his finals, court
officials scheduled a mock emancipation hearing that he was
able to attend. His former attorney acknowledged that the mock
hearing had no legal significance, but she said "'it had a lot
of meaning to him, it really did. It was closure.'" (Karen de
S?, Broken families, broken courts: Big stakes, but little
voice for kids , San Jose Mercury News (Feb. 12, 2008), quoting
Kathy Siegel.)
Dependency court decisions dramatically impact children's
lives . When children are removed from their homes due to abuse
or neglect, they are placed under the jurisdiction of the
dependency court. The dependency court gets to decide where
they live, whom they live with, and whether they can see their
family again. The court even decides whether to terminate
parental rights and begin adoption proceedings. However, even
though these hearings affect just about every aspect of a
child's life, many children who want to participate in their
dependency court hearings are shut out of the proceedings.
Experts believe that foster children who have some say in the
major decisions in their life are more apt to succeed than
those who do not.
Current law only requires that children 10 and over be notified
of court hearings. If the child is not present at a hearing,
even the hearing to terminate parental rights, all the court
has to do is see if the child received proper notice of the
hearing. The court is not required to postpone the hearing and
make sure the child can attend, even if the child was not
properly notified. This can effectively shut children out of
what may well be the most important decisions of their lives.
This bill helps to ensure that children who want to participate
in their foster care hearings can do so . This bill helps
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children who want to participate in their dependency hearings
in two ways. First, this bill clarifies that children in
attendance at their dependency hearings can address the court
and fully participate in the hearing. Second, if a child 10 or
older is not present at a hearing, and has not been properly
notified or given an opportunity to attend, this bill requires
the court to continue the hearing to allow the child to be
present, unless the court finds that it is in the best interest
of the child not to do so. This bill strictly limits
continuances to ensure hearings are held timely. To help
ensure children are able to attend hearings, this bill also
allows the court to issue any orders necessary to ensure that a
child, who wants to attend his or her hearing, may do so.
This bill also states the intent of the Legislature that (1)
all children who want to attend their juvenile court hearings
be given the means and the opportunity to attend, and that
these hearings be set to accommodate children's schedules; (2)
juvenile courts promote communication with, and the
participation of, children in attendance at hearings of which
they are the subject; and (3) children attending these hearing
leave the hearing with a clear understanding of what decisions
were made by the court and why. Recognizing the very serious
fiscal constraints that the State is under, this bill does not
mandate how these important objectives should be achieved, but
does state the legislative intent that the Administrative
Office of the Courts help promote them.
Studies have shown that there are many advantages to youth
participation at dependency hearings: "Attending court
benefits both the youth and the court. Youth have the
opportunity to understand the process by seeing firsthand the
court proceedings. They also develop a sense of control over
the process when they actively participate. The court learns
more about children than simply what is presented in reports."
(Andrea Khoury, Seen and Heard: Involving Children in
Dependency Court , 25 ABA Child Law Practice Vol. 10, p. 150
(Dec. 2006).)
The latter point is reiterated by the Pew Commission on
Children in Foster Care, which found that the quality of
decisions is improved when judges can hear and see the key
parties. The Commission found:
Children, parents, and caregivers all benefit when
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they have the opportunity to actively participate in
court proceedings, as does the quality of decisions
when judges can see and hear from key parties. State
court leaders should consider the impact of factors
such as court room and waiting area accommodations,
case scheduling, use of technology in the court room,
and translation of written materials. These issues can
make the process more accessible and meaningful for
all participants, including children.
(Pew Commission on Children in Foster Care, Fostering the
Future: Safety, Permanence and Well-Being for Children in
Foster Care, p. 42 (May, 2004).)
Draft recommendations from the Judicial Council California Blue
Ribbon Commission on Foster Care provide further support for
this bill . The Blue Ribbon Commission on Children in Foster
Care (Commission) was appointed by Chief Justice Ronald George
in 2006 to develop recommendations on how courts and their
partner entities could improve child welfare and fairness
outcomes. The Commission is chaired by Associate Justice
Carlos Moreno and includes Assemblymembers Bass and Maze and
Senator Steinberg as members.
The Commission's draft recommendations, issued on March 14,
2008, provide support for this bill. The Commission found:
The courts are often the unseen partners in child
welfare, but every child and parent in the foster-care
system knows it is the courts where critical decisions
are made, including such life-changing questions as
where and with whom a child will live. When
dependency court judges and attorneys are not
acquainted with "100 percent" of the child, when there
is inadequate time or not enough information to make
informed decisions, hearings are likely to be rushed
or delayed. Children and families suffer.
Of particular relevance to this legislation, the Commission
determined that local court practices should facilitate the
attendance of children, parents, and caregivers in hearings.
To that end, the Commission recommends, in draft, that, among
other things:
Hearings be available at times that do not conflict
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with school or work or other requirements of a family's
case plan;
Hearings be timely and meet all federal and state
mandated timelines. Continuances should be minimized and
the reasons for systemic continuances should be addressed
by the local court and child welfare agency;
All participants leave court hearings with a clear
understanding of what happened there, why decisions were
made, and if appropriate, what actions they need to take;
and
The AOC provide judicial officers and court
participants with education and support to create
courtroom environments that promote communication with,
and participation of, all parties, including children,
that takes into account age, development, language, and
cultural issues.
(California Blue Ribbon Commission on Children in Foster Care,
Draft Recommendations: The Role of the Courts in Improving the
Lives of Children and Families (March 2008).)
Given that this bill seeks to ensure that children who want to
participate in their dependency hearings are able to do so, it
advances the Commission's draft recommendations to facilitate
children's attendance at, and meaningful participation in,
their hearings.
While this bill does not address all issues surrounding court
attendance, it goes a long way toward helping make the court
process accessible for foster children . The bill helps ensure
that children who want to participate in their dependency
hearings are able to do so, but it does not address all issues
that may make participation difficult. This includes a
legislatively established transportation mandate, although the
bill does provide that a court may issue any orders necessary
to ensure that the child has an opportunity to be present.
Additionally, the hearing will be far more meaningful if
children are prepared for the hearing, including understanding
what to expect and how best to participate. The child's
attorney is best suited for explaining the court process to the
child.
ARGUMENTS IN SUPPORT : In support of the bill, the Children's
Law Center of Los Angeles writes that youth experience
significant frustration and anxiety when they are not given an
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opportunity to participate in the proceedings. Judges and
attorneys also report that if the child does not participate,
they have a hard time getting a true picture about the child's
life:
It has been our experience that when children and
youth are able to attend their hearings the benefits
to the child and to the court process are numerous.
When children and youth are present in court they ask
questions, engage in discussion with the judge, and
leave understanding why certain decisions have been
made. . .
Similarly, judges can learn a great deal from having
even the youngest children present in the courtroom.
Observing the child's interactions with other family
members, hearing in the child's own words about their
situation, current placement, school environment,
needs and wants, and hopes and dreams gives the
hearing officer a much more broad and deep
understanding of how to best proceed on the child's
behalf.
Agrees the Youth Law Center:
Participation in court proceedings allows youth to
have a say in the decisions that affect their lives,
helps them to understand the process, and provides
essential information for the court. Actively
involving youth in court decisions improves the
decision making process and increases the likelihood
that those decisions will be carried out. . . While
this bill will have a positive effect on all children
in the foster care system, it will be particularly
important for older youth who all too often leave
foster care for an uncertain future without adequate
preparation or support.
REGISTERED SUPPORT / OPPOSITION :
Support
Children's Law Center of Los Angeles
Youth Law Center
Many individuals
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Opposition
None on file
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334