BILL ANALYSIS Ó
AB 217
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Date of Hearing: March 17, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 217
(Maienschein) - As Introduced February 2, 2015
PROPOSED CONSENT
SUBJECT: DEPENDENCY HEARINGS: FOSTER CHILD PARTICIPATION
KEY ISSUE: SHOULD foster children be NOTIFIED OF THEIR RIGHT TO
ATTEND, and participate in, their dependency hearings, WHERE
CRITICAL, LIFE-CHANGING DECISIONS ARE MADE?
SYNOPSIS
Similar to prior measures, this bill continues California's
effort in enabling dependent children to be a part of the court
process that can affect all aspects of their lives.
Traditionally, a child who was the subject of a dependency
proceeding was only allowed to attend the hearing, not
participate. However, the State adopted a new approach. In
2003, the Legislature approved a bill - AB 408 (Steinberg),
Chap. 813 - which, among other things, afforded a minor the
right to participate and address the court in a dependency
hearing. Then in 2008, the Legislature approved another
dependency participation bill - AB 3051 (Judiciary), Chap. 166 -
which authorized a court to postpone a dependency hearing if it
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was necessary to allow a child to participate unless a
continuance was not in the child's best interest.
This bill, sponsored by the Children's Advocacy Institute,
reaffirms California's commitment to ensure that children in
foster care are able to have a meaningful opportunity to
participate in their dependency court hearings. This bill
simply requires the court to inform the dependent child during
the proceeding that he or she has a right to address the court
and participate in the hearing. This bill is consistent with
recommendations from the Pew Commission on Children in Foster
Care, and the Judicial Council Blue Ribbon Commission. This
bill is supported by Children Now, the County Welfare Directors
Association, and Juvenile Court Judges of California. There is
no known opposition.
SUMMARY: Provides a child who is the subject of a dependency
hearing notice about his or her right to participate in the
dependency hearing. Specifically, this bill requires the court
to inform a child present at and the subject of a dependency
hearing that he or she has a right to address the court and
participate in the hearing.
EXISTING LAW:
1)Requires that, among others, children 10 and over receive
notice of their 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 dependency hearing and
who is entitled notice of the hearing to be present at the
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hearing. (Section 349.)
3)Allows a minor present at the hearing the right to address the
court and to participate in the hearing. Allows that minor to
be represented at the hearing by counsel of his or her choice.
(Section 349.)
4)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. If the
minor was not properly notified, or wished to be present at
the hearing, the court may continue the hearing to allow the
minor to be present, unless the court determines that it is
not in the best interest of the child to do so. (Section
349.)
5)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).)
FISCAL EFFECT: As currently in print this bill is keyed
non-fiscal.
COMMENTS: According to the author:
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For California's abused and neglected children, the
future lies within a confusing tangle of government
offices and crucial legal proceedings, called juvenile
dependency hearings. During these hearings, the fate
of where the child will reside and how their future
will unfold is decided. Current law allows a minor to
speak during dependency hearings if the minor so
desires, but this is not made explicitly clear to the
minor, who may very well be confused and overwhelmed
by the weight and formality of the court hearing.
AB 217 will simply require the court to inform the
minor of his or her right to address the court and
participate in the hearing. This fix allows a child
to make his or her voice and desires heard, and
empower[s] that child to possibly influence a decision
that will affect that child for life.
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 do not know about their right to
participate. 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.
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
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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
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).)
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's recommendations, issued in May 2009, provide
support for this bill. The Commission found:
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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 all participants in dependency hearings,
including children and families, should have an opportunity to
be heard and meaningfully participate in court. To that end,
the Commission recommended, among other things, the following:
Judicial officers identify and engage all parties in
each case as early as possible;
Judicial officers and other stakeholders remove barriers
that prevent children, parents, and caregivers from
attending hearings;
Hearings be available at times that do not conflict with
school or work or other requirements of a family's case
plan;
All parties, including children, parents, and social
workers, have the opportunity to review reports and meet
with their attorneys before the initial hearing and in
advance of all subsequent hearings;
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All parties leave court hearings with a clear
understanding of what happened, why decisions were made,
and if appropriation, what actions they need to take;
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,
Final Report and Action Plan: Fostering a New Future for
California's Children (May 2009).)
Given that this bill seeks to ensure that children are informed
about their right to participate in their dependency hearings,
this bill advances the Commission's recommendations to allow
children to meaningfully participate in their hearings.
While this bill does not address all issues surrounding court
attendance, it furthers the goal of making the court process
accessible for foster children. The bill helps ensure that
children understand that their voice matters in a court
proceeding. This bill, however, does not address all of the
issues that may make participation difficult. This includes a
legislatively established transportation mandate, although
current law does allow a court to issue orders necessary to
ensure that the child has an opportunity to be present.
Moreover, this bill does not address the high ratio of
child-clients to dependency lawyers, or the need for additional
funding to tackle the growing caseloads of dependency lawyers,
although current law provides that all children be afforded with
the right of appointed counsel in a dependency hearing.
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ARGUMENTS IN SUPPORT: The Children's Advocacy Institute at the
University of San Diego School of Law states: that while
"children are permitted to speak if they [are asked to], too few
do [so] because of how intimidating the setting is." The
Children's Advocacy Institute contends that AB 217 will
encourage judges to be "mindful of how intimidating and awesome
the proceeding might feel" to the child by "[inviting] the child
in every proceeding to speak."
REGISTERED SUPPORT / OPPOSITION:
Support
Children's Advocacy Institute - University of San Diego School
of Law (sponsor)
Children Now
County Welfare Directors Association of California
Juvenile Court Judges of California
Opposition
None on file
Analysis Prepared by:Leora Gershenzon and Eric Dang / JUD. /
(916) 319-2334
AB 217
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