AB 1332 (Bloom): Prohibits the removal of a child from the physical custody of his or her parent unless the juvenile court finds clear and convincing evidence that there would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child for the parent to live with the child or otherwise exercise the parent's right to physical custody, and there are no reasonable means available by which the child's physical and emotional health can be protected without removal.
The author's Fact Sheet is Attachment A. The CWDA support letter is Attachment B.
The link to the bill is: http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180AB1332
2017 CA A 1332: Bill Analysis - 03/30/2017 - Assembly Judiciary Committee, Hearing Date 04/04/2017
Date of Hearing: April 4, 2017
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 1332
Author:(Bloom) - As Amended March 28, 2017
PROPOSED CONSENT
SUBJECT: DEPENDENT CHILDREN: REMOVAL FROM NONCUSTODIAL PARENTS
KEY ISSUE: SHOULD THE STANDARD FOR REMOVAL OF A DEPENDENT CHILD FROM A NONCUSTODIAL PARENT, WHEN THERE IS CLEAR AND CONVINCING EVIDENCE THAT REMOVAL IS NECESSARY TO PROTECT THE CHILD, BE CLARIFIED AND MADE CONSISTENT WITH THE STANDARD FOR REMOVAL OF A CHILD FROM A CUSTODIAL PARENT?
SYNOPSIS
The chief priority of the child welfare system is to protect children from abuse and neglect. To do so, a child may be made a dependent of the juvenile court and the court may make any and all reasonable orders for the care and custody of the child. In addition to that more general provision, existing law specifically provides that, if necessary, a child may be removed from his or her parents, provided that there is clear and convincing evidence that it would be a substantial danger to leave the child with the parents and there is no reasonable way to protect the child and leave the child with the parents. This standard protects children from abuse and also protects the fundamental rights of parents to raise their children. While the law is specific about when children may be removed from their custodial parents, it does not specifically state when a child may be removed from a noncustodial parent. This bill, sponsored by Los Angeles County Board of Supervisors and the County Welfare Directors Association of California, clarifies when a child may be removed from a noncustodial parent, based on the same substantial danger standard, and clear and convincing evidence, required for removal from a custodial parent. The author states that this bill is necessary because the limited ability of dependency courts today to "remove abusive non-custodial parents presents a dangerous loophole in protecting a child from a parent that presents a detriment to the safety of a child."
SUMMARY: Establishes a specific standard for removal of a dependent child from the physical custody of a noncustodial parent. Specifically, this bill provides that a dependent child may not be taken from the custody of a parent with whom the child did not reside at the time the dependency petition was initiated, unless the juvenile court finds clear and convincing evidence that it would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child for the parent to live with the child or otherwise have physical custody of the child, and there are no reasonable means by which the child's physical and emotional health can be protected without removing the child from the parent's physical custody.
EXISTING LAW:
1) Allows a juvenile court to adjudicate a child a dependent of the court as the result of abuse or neglect, as specified. (Welfare & Institutions Code Section 300. Unless stated otherwise, all further statutory references are to that code.)
2) Allows a court to limit control that a parent may have over a dependent child. (Section 361 (a).)
3) Allows a court to make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of a dependent child, including medical treatment, subject to further order of the court. (Section 362 (a).)
4) Prevents a dependent child from being removed from the physical custody of his or her parent or guardian with whom the child resided when the dependency petition was initiated, unless the court finds by clear and convincing evidence that, among other things, it would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child if the child was returned home, and there are no reasonable means by which the child's physical and emotional health can be protected without removing the child from the parent's physical custody. (Section 361 (c).)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: The chief priority of the child welfare system is to protect children from abuse and neglect. To do so, a child may be made a dependent of the juvenile court and, if necessary, removed from his or her parents' custody. In addition, the court may make any and all reasonable orders for the care and custody of the child. While the law is specific about when children may be removed from the parents with whom they reside, it provides only more general provisions about the power of the juvenile court to provide for dependent children, but does not specifically state how a child can be removed from the custody of a noncustodial parent. This bill clarifies when a child may be removed from a noncustodial parent, based on the same standard of removal from a custodial parent. The author states that this bill is necessary because the limited ability of dependency courts today to "remove abusive non-custodial parents presents a dangerous loophole in protecting a child from a parent that presents a detriment to the safety of a child."
Juvenile Court Empowered to Protect Dependent Children, But Must Recognize Parents' Constitutional Rights to Raise Their Children: The purpose of the child welfare system is to "provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm." (Section 300.2.) While the "safety, protection, and physical and emotional well-being of the child" is paramount, the focus of the system is also on the "preservation of the family," that is keeping children with their parents or extended family whenever possible. (Ibid.) The juvenile court's power to protect children is moderated by the parents' fundamental constitutional right to the care, custody, and management of their child, which "will not be disturbed except in extreme cases where a parent acts in a manner incompatible with parenthood." (In re Marquis D. (1995) 38 Cal. App. 4th 1813, 1828.) As a result, a child may not be removed from a parent's custody without a very clear need to protect the child. And if a child is removed, that removal is reviewed often and the child is to be returned home whenever it is not necessary for the child's protection to remain away from his or her parents. Parents' rights are protected regardless of whether they are custodial or noncustodial parents. A noncustodial parent may not have physical custody of a child at all times, but he or she may have some custodial rights and likely also has legal custody of the child. These rights are protected as fundamental rights. For example, if a juvenile court assumes jurisdiction over a child, both parents, regardless of whether the child lived with one or both parents at the time of removal, are required to be notified of all proceedings involving the child, receive copies of all reports, and be represented by counsel. (Sections 302, 317.)
The law is very clear on how and when a dependent child may be removed from a custodial parent. Section 361 (c) allows a court to remove a child from the physical custody of the parent with whom the child resided when the dependency petition was initiated only if the court finds by clear and convincing evidence that, among other things, it would be a substantial danger to the physical health, safety, protection, or well-being of the child if the child was returned home, and there are no reasonable means by which the child's physical and emotional health can be protected without removing the child from the parent's physical custody. However, that provision does not, by its own terms, apply to any parent that the child was not residing with at the time of removal. The statute is silent about when a child can be removed from a parent with whom the child was not residing at the time the dependency petition was initiated.
Recent Case Suggests Clarity in Law Regarding Removal of Child From a Noncustodial Parent is Warranted: A recent appellate court case, In re Dakota J. (2015) 242 Cal. App. 4th 619, raised the issue of when a dependent child can be removed from a parent with whom the child was not residing at the time the dependency petition was initiated. The trial court, in reliance on Section 361 (c), removed the children from the mother, who was not the custodial parent. The appellate court reversed, holding that the plain language of the statute only applied to parents with whom the children had resided. However, the court noted that the children could still be removed under other statutes, including Section 361 (a), which allows a court to limit control that a parent may have over a dependent child, and Section 362 (a), which allows a court to make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of a dependent child. As a result, the court remanded the case and allowed the trial court to consider whether the children could be removed from their mother based on statutory grounds other than Section 361 (c).
This Bill Provides Needed Clarity on When a Child May be Removed From a Noncustodial Parent: Even if there are other methods to remove a child from a parent with whom the child did not reside at the time the dependency petition was filed, providing clear statutory authority on when and how a child may be removed from that parent will provide important guidance to the courts and child welfare personnel on how to protect children, while still ensuring that the fundamental parental rights of noncustodial parents are protected. This bill does so by allowing removal from a parent with whom the child did not reside on the same basis as removal of a child from the custodial parent. A child may only be removed from the custody of a parent with whom the child did not reside at the time the dependency petition was filed if the court finds clear and convincing evidence that it would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child for the parent to live with the child or otherwise have physical custody of the child, and there are no reasonable means by which the child's physical and emotional health can be protected without removing the child from the parent's physical custody. This standard protects children from harm, but also protects the constitutional rights of parents - both custodial and noncustodial - to raise their children as they see fit, provided they do not harm those children.
In support of the bill, the County Welfare Directors Association of California writes that this bill will remedy the gap in the law exposed by In re Dakota J. and "ensure the protection of children in circumstances where" the noncustodial parent poses a danger to the children.
REGISTERED SUPPORT / OPPOSITION:
Support
County Welfare Directors Association of California (co-sponsor)
Los Angeles County Board of Supervisors (co-sponsor)
Opposition
None on file
Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334 |