Existing law specifies the circumstances under which a proceeding may be brought to have a child under 18 years of age declared free from the custody and control of either or both parents. These circumstances include, among others, the abandonment of the child by a parent and the neglectful or cruel treatment of the child by a parent.

This bill would establish that a finding that a parent committed severe sexual abuse against the child is prima facie evidence that the parent has neglected or cruelly treated the child for the purposes of terminating parental rights under these procedures.

Existing law specifies the circumstances under which a proceeding may be brought to have a child under 18 years of age declared free from the custody and control of either or both parents. These circumstances include, among others, the abandonment of the child by a parent and the neglectful or cruel treatment of the child by a parent.

This bill would establish that a finding that a parent committed severe sexual abuse against the child is prima facie evidence that the parent has neglected or cruelly treated the child for the purposes of terminating parental rights under these procedures.

Existing law specifies the circumstances under which a proceeding may be brought to have a child under 18 years of age declared free from the custody and control of either or both parents. These circumstances include, among others, the abandonment of the child by a parent and the neglectful or cruel treatment of the child by a parent.

This bill would include as an additional circumstance a finding that a parent committed severe sexual abuse against the child or the childs sibling or half-sibling. The bill would also make establish that a finding that a parent committed severe sexual abuse against the child is prima facie evidence that the parent has neglected or cruelly treated the child for the purposes of terminating parental rights under these procedures.

Existing law specifies the circumstances under which a proceeding may be brought to have a child under 18 years of age declared free from the custody and control of either or both parents. These circumstances include, among others, the abandonment of the child by a parent and the neglectful or cruel treatment of the child by a parent.

This bill would include as an additional circumstance a finding that a parent committed severe sexual abuse against the child or the childs sibling or half-sibling. The bill would also make a finding that a parent committed severe sexual abuse against the child prima facie evidence that the parent has neglected or cruelly treated the child for the purposes of terminating parental rights under these procedures.

 CONSENT  

Bill No: AB 2792

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 7-0, 6/12/18

AYES: Jackson, Moorlach, Anderson, Hertzberg, Monning, Stern, Wieckowski

ASSEMBLY FLOOR: 72-0, 5/7/18 (Consent) - See last page for vote

SUBJECT:

SOURCE: Conference of California Bar Associations

DIGEST:

This bill clarifies that a prior finding of severe sexual abuse in the context of a juvenile dependency proceeding constitutes evidence of neglect or cruel treatment for the purposes of a separate proceeding to terminate parental rights.

ANALYSIS:

Existing law:

1. Provides that a proceeding may be brought for the purpose of having a minor child declared free from the custody of either or both parents, for the purpose of serving the welfare and best interest of a child by providing the stability and security of an adoptive home when those conditions are otherwise missing from the child’s life. (Fam. Code Secs. 7800 & 7802.)
2. Provides that a declaration of freedom from parental custody and control terminates all parental rights and responsibilities with regard to the child. (Fam. Code Sec. 7803.)
3. Requires a finding for these purposes to be supported by clear and convincing evidence, except as otherwise provided. (Fam. Code Sec. 7821.)
4. Provides that a proceeding for the purpose of having a child under the age of 18 declared free from the custody or control of either or both parents may be brought if specified circumstances exist. (Fam. Code Secs. 7820 & 7822.)
5. Provides that such a proceeding may be brought if both of the following requirements are satisfied:

• The child has been neglected or cruelly treated by either or both parents.
• The child has been a dependent child of the juvenile court under any subdivision of Section 300 of the Welfare and Institutions Code and the parent or parents have been deprived of the child’s custody for one year before the filing of a petition to bring the proceeding. (Fam. Code Sec. 7823.)

1. Provides that a child who has suffered certain serious harms or substantial risks of harm by the child’s parent or guardian, or as a result of the parent or guardian’s failure or inability to provide adequate supervision, as specified, is within the jurisdiction of the juvenile court, which may adjudge the child to be a dependent child of the court. (Welf. & Inst. Code Sec. 300.)
2. Provides that the focus of juvenile dependency proceedings is on the preservation of the family as well as the safety, protection, and physical and emotional well-being of the child. The provision of a home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection and physical and emotional well-being of the child. Successful participation in a treatment program for substance abuse may be considered in evaluating the home environment. In addition, the provisions of this chapter ensuring the confidentiality of proceedings and records are intended to protect the privacy rights of the child. (Welf. & Inst. Code Sec. 300.2.)
3. Provides that if a minor is adjudged a dependent child of the court on the ground that the minor is a person described in Section 300 of the Welfare and Institutions Code, the court may limit the control to be exercised over the dependent child by any parent or guardian, as necessary to protect the child. (Welf. & Inst. Code Sec. 361(a).)
4. Prohibits a child from being taken from the physical custody of his or her parents or guardians with whom the child resides, unless the juvenile court finds clear and convincing evidence of specified circumstances. (Welf. & Inst. Code Sec. 361(a).)
5. Provides that the child who is taken from the physical custody of his or her parents or guardians need not be reunified with the parents or guardians if the juvenile court finds clear and convincing evidence of specified circumstance, including instances in which the child has been adjudicated a dependent pursuant to Section 300 of the Welfare and Institutions Code as a result of severe sexual abuse or the infliction of severe physical harm to the child, a sibling, or a half sibling by a parent or guardian, as defined, and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent or guardian. (Welf. & Inst. Code Sec. 361.5(b)(6)(A).)
6. Provides that a finding of severe sexual abuses for purposes of the provision described above may be based on, but is not limited to, sexual intercourse, or stimulation involving genital-genital, oral-genital, anal-genital, or oral-anal contact, whether between the parent or guardian and the child or a sibling or half sibling of the child, or between the child or a sibling or half sibling of the child and another person or animal with the actual or implied consent of the parent or guardian; or the penetration or manipulation of the child’s, sibling’s, or half sibling’s genital organs or rectum by any animate or inanimate object for the sexual gratification of the parent or guardian, or for the sexual gratification of another person with the actual or implied consent of the parent or guardian. (Welf. & Inst. Code Sec. 361.5(b)(6)(B).)

This bill provides that, for the purpose of a proceeding in which a minor child may be declared free from the custody of either or both parents after having been declared a dependent child of the juvenile court and the parent or parents have been deprived of the child’s custody for at least a year, a finding that a parent committed severe sexual abuse under the provisions described above constitutes prima facie evidence that the parent has neglected or cruelly treated the child.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 6/12/18)

Conference of California Bar Associations (source)

California Family Resource Association

California Police Chiefs Association

Child Abuse Prevention Center

Crime Victims United of California

OPPOSITION: (Verified 6/12/18)

None received

ARGUMENTS IN SUPPORT: According to the author:

Currently, a family court judge can terminate parental rights under a myriad of circumstances, including if a child is being cruelly treated or neglected. Yet, there are no laws permitting a family court judge to terminate a parent’s rights in cases of severe sexual abuse. AB 2792 simply adds language to Family Code section 7823 stipulating that a court finding that a parent committed severe sexual abuse is evidence of neglect and cruelty committed against a child, unless there is compelling evidence to the contrary.

Without this clarifying language, sexually victimized children in the family law system can be forced to have ongoing contact with their perpetrators, a situation that is arguably detrimental to the wellbeing of children.

ASSEMBLY FLOOR: 72-0, 5/7/18

AYES: Acosta, Aguiar-Curry, Travis Allen, Arambula, Baker, Berman, Bigelow, Bloom, Brough, Burke, Caballero, Calderon, Carrillo, Cervantes, Chau, Chávez, Chiu, Choi, Chu, Cooley, Cooper, Dahle, Daly, Flora, Fong, Frazier, Friedman, Gallagher, Eduardo Garcia, Gipson, Gloria, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Quirk, Quirk-Silva, Reyes, Rodriguez, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon

NO VOTE RECORDED: Bonta, Chen, Cunningham, Eggman, Cristina Garcia, McCarty

Prepared by:

6/15/18 13:43:40

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: AB 2792 (Author:Calderon)

Version: April 4, 2018

Hearing Date: June 12, 2018

Fiscal: No

Urgency: No

Consultant: JDT

SUBJECT

Termination of the parent and child relationship: severe sexual abuse

DESCRIPTION

This bill would clarify that a prior finding of severe sexual abuse in the context of a juvenile dependency proceeding constitutes evidence of neglect or cruel treatment for the purposes of a separate proceeding to terminate parental rights.

BACKGROUND

Existing law provides for proceedings to curtail or terminate parental rights in circumstances suggesting that the parent lacks the capability or fitness to properly supervise a child. Parental rights may be terminated if, among other things, the parent has been deprived of custody for a year while the child was a dependent of the court, and a court finds by clear and convincing evidence that the child has been neglected or cruelly treated by either or both parents.

This bill would provide that if the reason for deprivation of custody was severe sexual abuse, this finding is prima facie evidence that the child was neglected or cruelly treated for purposes of terminating parental rights.

CHANGES TO EXISTING LAW

Existing law provides that a proceeding may be brought for the purpose of having a minor child declared free from the custody of either or both parents, for the purpose of serving the welfare and best interest of a child by providing the stability and security of an adoptive home when those conditions are otherwise missing from the child’s life. (Fam. Code Secs. 7800 & 7802.)

Existing law provides that a declaration of freedom from parental custody and control terminates all parental rights and responsibilities with regard to the child. (Fam. Code Sec. 7803.)

Existing law requires a finding for these purposes to be supported by clear and convincing evidence, except as otherwise provided. (Fam. Code Sec. 7821.)

Existing law provides that a proceeding for the purpose of having a child under the age of 18 declared free from the custody or control of either or both parents may be brought if specified circumstances exist. (Fam. Code Secs. 7820 & 7822.)

Existing law additionally provides that such a proceeding may be brought if both of the following requirements are satisfied:

• The child has been neglected or cruelly treated by either or both parents;
• The child has been a dependent child of the juvenile court under any subdivision of Section 300 of the Welfare and Institutions Code and the parent or parents have been deprived of the child’s custody for one year before the filing of a petition to bring the proceeding. (Fam. Code Sec. 7823.)

Existing law provides that a child who has suffered certain serious harms or substantial risks of harm by the child’s parent or guardian, or as a result of the parent or guardian’s failure or inability to provide adequate supervision, as specified, is within the jurisdiction of the juvenile court, which may adjudge the child to be a dependent child of the court. (Welf. & Inst. Code Sec. 300.)

Existing law provides that the focus of juvenile dependency proceedings is on the preservation of the family as well as the safety, protection, and physical and emotional well-being of the child. The provision of a home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection and physical and emotional well-being of the child. Successful participation in a treatment program for substance abuse may be considered in evaluating the home environment. In addition, the provisions of this chapter ensuring the confidentiality of proceedings and records are intended to protect the privacy rights of the child. (Welf. & Inst. Code Sec. 300.2.)

Existing law provides that if a minor is adjudged a dependent child of the court on the ground that the minor is a person described in Section 300 of the Welfare and Institutions Code, the court may limit the control to be exercised over the dependent child by any parent or guardian, as necessary to protect the child. (Welf. & Inst. Code Sec. 361(a).)

Existing law prohibits a child from being taken from the physical custody of his or her parents or guardians with whom the child resides, unless the juvenile court finds clear and convincing evidence of specified circumstances. (Welf. & Inst. Code Sec. 361(a).)

Existing law provides that the child who is taken from the physical custody of his or her parents or guardians need not be reunified with the parents or guardians if the juvenile court finds clear and convincing evidence of specified circumstance, including instances in which the child has been adjudicated a dependent pursuant to Section 300 of the Welfare and Institutions Code as a result of severe sexual abuse or the infliction of severe physical harm to the child, a sibling, or a half sibling by a parent or guardian, as defined, and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent or guardian. (Welf. & Inst. Code Sec. 361.5(b)(6)(A).)

Existing law provides that a finding of severe sexual abuses for purposes of the provision described above may be based on, but is not limited to, sexual intercourse, or stimulation involving genital-genital, oral-genital, anal-genital, or oral-anal contact, whether between the parent or guardian and the child or a sibling or half sibling of the child, or between the child or a sibling or half sibling of the child and another person or animal with the actual or implied consent of the parent or guardian; or the penetration or manipulation of the child’s, sibling’s, or half sibling’s genital organs or rectum by any animate or inanimate object for the sexual gratification of the parent or guardian, or for the sexual gratification of another person with the actual or implied consent of the parent or guardian. (Welf. & Inst. Code Sec. 361.5(b)(6)(B).)

This bill would provide that, for the purpose of a proceeding in which a minor child may be declared free from the custody of either or both parents after having been declared a dependent child of the juvenile court and the parent or parents have been deprived of the child’s custody for at least a year, a finding that a parent committed severe sexual abuse under the provisions described above constitutes prima facie evidence that the parent has neglected or cruelly treated the child.

COMMENT

1. Stated need for the bill

According to the author:

Currently, a family court judge can terminate parental rights under a myriad of circumstances, including if a child is being cruelly treated or neglected. Yet, there are no laws permitting a family court judge to terminate a parent’s rights in cases of severe sexual abuse. AB 2792 simply adds language to Family Code section 7823 stipulating that a court finding that a parent committed severe sexual abuse is evidence of neglect and cruelty committed against a child, unless there is compelling evidence to the contrary.

Without this clarifying language, sexually victimized children in the family law system can be forced to have ongoing contact with their perpetrators, a situation that is arguably detrimental to the wellbeing of children.

2. Proceedings to curtail custody rights and proceedings to terminate parental rights

The juvenile dependency system is designed to protect children from abuse and neglect, while also preserving the rights of parents and families. (See In re Alexander (1957) 152 Cal.App.2d 458, 461). The overarching goal of dependency proceedings is to safeguard the welfare of California’s children. (In re Josiah Z. (2005) 36 Cal.4th 664, 673.) “Family preservation, with the attendant reunification plan and reunification services, is the first priority when child dependency proceedings are commenced. [Citation.] Reunification services implement ‘the law’s strong preference for maintaining the family relationships if at all possible.’ [Citation.]” (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1787.) Far from being punitive, reunification services are typically understood as a benefit provided to parents in dependency proceedings, because services enable them to demonstrate parental fitness and so regain custody of their dependent children. (Welf. & Inst. Code Secs. 300 & 361.5; In re Nolan W. (2009) 45 Cal.4th 1217, 1228.) Since family preservation is a priority of child dependency proceedings, the law strongly favors reunification whenever possible. (In re Jesse W. (2007) 157 Cal.App.4th 49.) Thus, any control the dependency system exercises over a child is subject to a series of hearings and judicial oversight designed to ensure that parental rights are only limited to the extent necessary to protect the child.

When a child is suspected of being a victim of abuse or neglect, a county welfare social worker is required to immediately investigate the complaint. If the complaint is valid, the child is removed from a parent’s physical custody and may be placed in the temporary custody of the social worker, a responsible relative, or guardian. The social worker is required to file a petition with the juvenile court, and the court then holds a detention hearing to determine whether the child should be further detained. If the child is further detained, the court must then hold a dispositional hearing to ascertain whether there are child welfare services that would permit the child to return home, and, if appropriate, order services to reunify the child and family. In “family reunification” cases where the child is placed in out-of-home care, and “family maintenance” cases where the child is returned to the parent’s custody, the juvenile court must hold periodic review hearings, generally every six months, to monitor the progress of the services being offered to the family and the best interests of the child.

However, under Welfare and Institutions Code Section 361.5, reunification services need not be provided to a parent or guardian if the court finds, by clear and convincing evidence, that the parent is incapable or unfit under several enumerated provisions, including if the dependency proceeding was a result of severe sexual abuse or the infliction of severe physical harm to the child, a sibling, or a half sibling by a parent or guardian, if the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent or guardian. (Welf. & Inst. Code Sec. 361.5(b)(6)(A).)

This bill would provide that such a finding in a dependency proceeding constitutes prima facie evidence of neglect or cruel treatment for purposes of a proceeding to declare a child free from the custody and control of his or her parents under Family Code Section 7800 et seq. Unlike dependency proceedings, in which the focus is on the reunification and maintenance of the family, proceedings under the Family Code are designed to sever the parental relationship as a first step to accomplishing adoption of the child. Findings in a proceeding to terminate a parent-child relationship under these provisions must be supported by clear and convincing evidence. (Fam. Code Sec. 7821; In re Laura F. (1983) 33 Cal.3d 826, 839.) Termination of parental rights under these provisions must rest on present circumstances as well as on past acts. (In re Marcel N. (1991) 235 Cal. App. 3d 1007, 1014.)

“Prima face” evidence is “sufficient to establish a fact or raise a presumption unless disproved or rebutted.” (Black’s Law Dictionary (9th Ed.), p. 1310.) Thus, this bill would provide that a finding, for purposes of a dependency proceeding, of clear and convincing evidence that a child was affected by severe sexual abuse caused by a parent or guardian, raises the presumption, for purposes of a proceeding to sever parental rights, that the child has been neglected or cruelly treated by either or both parents. In essence, the bill would clarify that a prior finding of severe sexual abuse is presumptively sufficient to terminate parental rights.

Support: California Family Resource Association; California Police Chiefs Association; Child Abuse Prevention Center; Crime Victims United of California; Conference of California Bar Associations

Opposition: None known

HISTORY

Source: Conference of California Bar Associations

Related Pending Legislation: None known

Prior Legislation: AB 1702 (Stone, Ch. 124, Stats. 2016) amended Welfare and Institutions Code Section 361.5 to provide that reunification services need not be provided when the court finds that the parent or guardian knowingly participated in, or permitted, the sexual exploitation of the child, as prescribed, except if the parent or guardian demonstrated by a preponderance of the evidence that he or she was coerced into permitting, or participating in, the sexual exploitation of the child.

Prior Vote:

Assembly Floor (Ayes 72, Noes 0)

Assembly Judiciary Committee (Ayes 10, Noes 0)

**************

Date of Hearing: May 1, 2018

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 2792

Author:(Calderon) – As Amended Ver:April 4, 2018

PROPOSED CONSENT

SUBJECT: Termination of the parent and child relationship: severe sexual abuse

KEY ISSUE: SHOULD A FINDING THAT A PARENT COMMITTED SEVERE SEXUAL ABUSE AGAINST A CHILD BE PRIMA FACIE EVIDENCE OF NEGLECTING OR CRUELLY TREATING THE CHILD FOR PURPOSES OF TERMINATING THE PARENTAL RIGHTS OF THE PARENT?

SYNOPSIS

This common sense, and non-controversial bill, seeks to align the standards for adjudicating parental termination cases involving severe sexual abuse against a child, between the Welfare and Institutions Code and the Family Code. The existing provisions of the Welfare and Institutions Code disfavor reunifying a parent with a child if that parent was found to have committed severe sexual abuse against the child. These provisions are used to adjudicate matters when a local child welfare agency or probation department is involved in removing a child from the family home. However, if a parent seeks to terminate the other parent’s rights in a child custody proceeding, that matter would be adjudicated under the provisions of the Family Code. That code does not explicitly state that severe sexual abuse is grounds for terminating a parent’s rights. Although it is unlikely that the family court would overlook a parent’s sexual abuse of a child, this bill would, nonetheless, better align these provisions to ensure more consistent application of the law.

This bill is supported by the Conference of California Bar Associations, the California Police Chief’s Association, and Crime Victims United who contend that the clarification in the law is necessary to protect abused children, regardless of which applicable law is used for adjudicating a parental rights case. This bill has no known opposition.

SUMMARY: Provides that a finding that a parent committed severe sexual abuse against a child shall be prima facie evidence that the parent has neglected or cruelly treated the child for the purpose of terminating the parent and child relationship.

EXISTING LAW:

1. Provides, generally, the grounds for commencing a legal proceeding for the purpose of having a child under the age of 18 years declared free from the custody and control of either or both parents of the child. (Family Code Section 7820 et seq.)
2. Provides that a proceeding authorized by 1) may be brought if any of the following occur:
3. The child has been left without provision for the child’s identification by the child’s parent or parents;
4. The child has been left by both parents or the sole parent in the care and custody of another person for a period of six months without any provision for the child’s support, or without communication from the parent or parents, with the intent on the part of the parent or parents to abandon the child; and
5. One parent has left the child in the care and custody of the other parent for a period of one year without any provision for the child’s support, or without communication from the parent, with the intent on the part of the parent to abandon the child. (Family Code Section 7822 (a).)
6. Provides that, generally, when the parent of an Indian child that has transferred physical care, custody and control of the child to an Indian custodian, that action shall not be deemed to constitute an abandonment of the child, notwithstanding 2). (Family Code Section 7822 (e).)
7. Provides that the proceeding authorized by 1) may be brought when both of the following are satisfied:
   1. The child has been neglected or cruelly treated by either or both parents; and
   2. The child has been a dependent child of the court for any of the reasons identified in Section 300 of the Welfare and Institutions Code. (Family Code Section 7823 (a).)
8. Provides that a child is within the jurisdiction of a juvenile court if the child meets any of the following circumstances:
   1. A child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child’s parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent’s or guardian’s mental illness, developmental disability, or substance abuse;
   2. A child who is sexually trafficked or who receives food or shelter in exchange for, or who is paid to perform sexual acts, and whose parent or guardian fails to, or was unable to, protect the child;
   3. A child is suffering serious emotional damage, or is at substantial risk of suffering serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, as a result of the conduct of the parent or guardian or who has no parent or guardian capable of providing appropriate care;
   4. A child has been sexually abused, or there is a substantial risk that the child will be sexually abused by the child’s parent or guardian or the parent or guardian failed to adequately protect the child from sexual abuse;
   5. A child is under the age of five years and has suffered severe physical abuse by a parent, or by any person known by the parent, if the parent knew or reasonably should have known that the person was physically abusing the child;
   6. A child’s parent or guardian caused the death of another child through abuse or neglect;
   7. A child has been left without support, been voluntarily surrendered and not been reclaimed within 14 days, a child’s parent has been incarcerated and cannot care for the child, and when the whereabouts of the parent are unknown, and reasonable efforts to locate the parent have been unsuccessful;
   8. A child has been freed for adoption by one or both parents for 12 months by either relinquishment or termination of parental rights or an adoption petition has not been granted;
   9. A child has been subjected to an act or acts 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 an act or acts of cruelty when the parent or guardian knew or reasonably should have known that the child was in danger of being subjected to an act or acts of cruelty; and
   10. The child’s sibling has been abused or neglected, and there is a substantial risk that the child will be abused or neglected. (Welfare and Institutions Code Section 300.)
9. Provides that at an initial juvenile dependency hearing, the following parties shall be provided notice:
   1. The mother;
   2. The father or fathers, presumed or alleged;
   3. The legal guardian or guardians;
   4. The child, if over ten years of age;
   5. Any known sibling of the child if the sibling is 10 years of age or older;
   6. Any adult relative residing in the county, if the child’s parent or guardian does not reside in California;
   7. The District Attorney, if requested; and
   8. The Probate Department, if the child is a ward of a guardian appointed pursuant to the Probate Code. (Welfare and Institutions Code Section 290.2.)
10. Provides that the focus of juvenile dependency proceedings shall be on the preservation of the family as well as the safety, protection, and physical and emotional well-being of the child. The provision of a home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection and physical and emotional well-being of the child. Successful participation in a treatment program for substance abuse may be considered in evaluating the home environment. In addition, the provisions of this chapter ensuring the confidentiality of proceedings and records are intended to protect the privacy rights of the child. (Welfare and Institutions Code Section 300.2.)
11. Provides that severe sexual abuse, for the purpose of denying family reunification services shall include, but is not limited to, sexual intercourse, or stimulation involving genital-genital, oral-genital, anal-genital, or oral-anal contact, whether between the parent or guardian and the child or a sibling or half sibling of the child, or between the child or a sibling or half sibling of the child and another person or animal with the actual or implied consent of the parent or guardian; or the penetration or manipulation of the child’s, sibling’s, or half sibling’s genital organs or rectum by any animate or inanimate object for the sexual gratification of the parent or guardian, or for the sexual gratification of another person with the actual or implied consent of the parent or guardian. (Welfare and Institutions Code Section 361.5 (b)(6).)

FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.

COMMENTS: The author notes that parental rights cases involving allegations of severe sexual abuse of a child are handled in an inconsistent manner, depending on whether the Family Code or the Welfare and Institutions Code applies to the case. The author believes that under the Family Code, a child may not be removed from the home of a sexual abuser because sexual abuse is not explicitly linked to the neglect and cruel treatment standard used in the Family Code. Accordingly, this bill seeks to better align the two codes. In support of this measure the author states:

AB 2792 would permit a family court which has found clear and convincing evidence that a parent has committed severe sexual abuse of a child to initiate a proceeding to terminate the parental rights of the sexual abusive parent.

If a family court judge finds there is clear evidence a child has been severely sexually abused by a parent, the other parent should have the ability to seek termination just as they would in dependency court. Abused children deserve the same level of protection regardless of which court system acts as the arbiter of their case. Currently this cause of action does not exist.

AB 2792 will amend Family Code sections 7823 to add “severe sexual abuse” as grounds for termination of parental rights by family court judges, provided that both parties are represented by counsel.

The unfortunate reality of child abuse. The author and supporters note that child abuse in California remains a troubling reality. According to Darkness to Light, a national child welfare and abuse prevention organization, approximately one in ten children will be the victims of sexual assault before reaching the age of 18. The group also notes that 20 percent of abuse cases occur before a child turns eight years of age, and perhaps most troublingly, 30 percent of these children are victimized by members of their own family.

Victims of abuse, especially those forced to remain in close proximity to their abusers, suffer lifelong mental health issues. Additionally, as noted by Darkness to Light, child sexual abuse has been linked to academic struggles, childhood delinquency, adult criminal activity, and substance abuse. In the event the abuse becomes known to child protective services, the case will likely lead to a child welfare proceeding pursuant to the Welfare and Institutions Code. Under existing law, in the Welfare and Institutions Code, the court is authorized to remove the child from the home of a parent who committed severe sexual abuse, or parent who knew or should have known of the abuse. However, no such provisions referencing severe sexual abuse exist in the Family Code. The author fears that this quirk in the law may lead to an inconsistent adjudication of parental rights.

This bill. Seeking to remedy the inconsistencies between parental rights adjudication under the Welfare and Institutions Code and the Family Code, this bill adds a reference to the Family Code section regarding proceedings to terminate parental rights for neglect or cruelty. This bill would, sensibly, provide that a court finding that a parent committed severe sexual abuse is to be considered prima facie evidence of neglect and cruelty committed against a child. Such a finding would ensure that a judicial officer in a Family Court proceeding would not be hamstrung from removing a child from the custody of a parent who is found to be abusive.

Adjudicating parental rights in Family Court versus Dependency Court. While parental rights are, to a degree, litigated in dependency and family proceedings, the termination of parental rights typically are adjudicated in dependency proceedings. Dependency proceedings are, typically, brought when a public agency believes neglect or abuse is taking place in a child’s home. Both state and federal courts have long held that “the companionship, care, custody, and management of [one’s] children is a compelling one, ranked among the most basic of civil rights.” (Stanley v. Illinois (1972) 405 U.S. 645, 651.) Accordingly, California court proceedings involving parental rights provide significant protections to parents objecting to the removal of a child from their home and otherwise depriving them of their rights, holding that when, “depriving a parent of [their parental] interest, [the court] must afford him adequate notice and an opportunity to be heard.” (In re Moilanen (1951) 104 Cal. App. 2d 835, 842.) To ensure the full protection of parental rights, dependency law strongly prefers reunification of families unless evidence exists to demonstrate a need to remove a child and terminate a parent’s right. To that end, the Welfare and Institutions explicitly permits denying family unification to parents who have committed severe sexual abuse.

Parental rights cases adjudicated under the Family Code, typically arise during adoption proceedings or in a child custody matter where one parent or guardian is seeking to strip another parent or guardian of their parental rights. Although the parent’s civil rights remain in full effect in family court, the Family Code does not provide the same procedural guidelines and preference toward family reunification that are incorporated into the Welfare and Institutions. Accordingly any changes to a parent’s rights under the Family Code must be closely scrutinized. To that end, the author previously amended this bill to reduce the bill’s scope so that it will simply align the provisions related to sexual abuse to ensure conformity with the Welfare and Institutions Code.

As noted above, in the event a parent seeks to terminate the other parents right as the result of abuse that case would advance via a proceeding under the Family Code. A parent would typically seek such an adjudication to avoid the risk of losing rights themselves in a dependency proceeding. As the author notes, existing law would not necessarily terminate the parental rights of a sexually abusive parent unless child services became involved due to the ambiguity in the existing Family Code. Although these cases are rare, and a public agency would likely become involved before a final adjudication of the matter, this bill would ensure that the same egregious conduct is treated equally whether a parent’s rights are adjudicated under the Family Code or Welfare and Institutions Code.

ARGUMENTS IN SUPPORT: In support of this measure the Conference of California Bar Associations, an alliance of legal practitioners, notes that the ambiguity in existing law may lead to inconsistent results in parental termination matters and states:

AB 2792 will remove all doubt from such situations by providing in statute that a finding that a parent committed severe sexual abuse against the child shall be prima facie evidence that the parent has neglected or cruelly treated the child. This will better ensure that children can be protected from parents who have been sexually abusing them.

Furthermore, the California Police Chiefs Association reports that child sexual abuse can lead to significant harms later in life including addiction and criminal behavior. In support of this bill they note:

This bill aims to address the horrific reality of sexual abuse by a parent. By allowing a judge to terminate parental rights, the victim can be removed from their abuser and begin their journey toward a full recovery.

REGISTERED SUPPORT / OPPOSITION:

Support

California Police Chiefs Association

Conference of California Bar Associations

Crime Victims United of California

Opposition

None on file

Analysis Prepared by: Nicholas Liedtke / JUD. / (916) 319-2334