BILL NUMBER: AB 1405 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 28, 2007
INTRODUCED BY Assembly Member Maze
FEBRUARY 23, 2007
An act to amend Section 827 241.1 of
the Welfare and Institutions Code, relating to juvenile law.
LEGISLATIVE COUNSEL'S DIGEST
AB 1405, as amended, Maze. Juvenile records: access.
Juveniles: joint assessment of status: confidential
information.
Existing law provides that whenever a minor appears to come within
the description of both a dependent child and a ward of the juvenile
court, the county probation department and the child protective
services department shall, pursuant to a jointly developed written
protocol, initially determine which status will serve the best
interests of the minor and the protection of society. Existing law
authorizes the probation department and the child welfare services
department in any county to create a protocol that would permit a
minor who meets specified criteria to be designated as both a
dependent child and a ward of the juvenile court, as specified.
This bill would authorize a juvenile court joint assessment team,
comprised of representatives of mental health, child welfare,
probation, and other necessary agencies, to exchange and share
specified information relating to the minor that might otherwise be
confidential under state law or regulation. The bill would require
that information to be maintained in a manner that ensures its
confidentiality, and would prohibit further disclosure of the
information. The bill would require a member of a juvenile court
joint assessment team who receives this information to maintain the
privacy of the minor and the confidentiality of the information. The
bill would make this information inadmissible against the minor at a
civil or criminal hearing or proceeding, other than the joint
assessment.
Existing law specifies the persons who are authorized to inspect
juvenile case files.
This bill would authorize current Members of the Legislature to
inspect a juvenile case file that pertains to a deceased child who
was within the jurisdiction of the juvenile court, as specified. The
bill would also make a technical change.
Vote: majority. Appropriation: no. Fiscal committee: yes
no . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 241.1 of the Welfare
and Institutions Code is amended to read:
241.1. (a) Whenever If a minor
appears to come within the description of both Section 300 and
Section 601 or 602, the county probation department and the child
welfare services department shall, pursuant to a jointly developed
written protocol described in subdivision (b), initially determine
which status will serve the best interests of the minor and the
protection of society. The recommendations of both departments shall
be presented to the juvenile court with the petition that is filed on
behalf of the minor, and the court shall determine which status is
appropriate for the minor. Any other juvenile court having
jurisdiction over the minor shall receive notice from the court,
within five calendar days, of the presentation of the recommendations
of the departments. The notice shall include the name of the judge
to whom, or the courtroom to which, the recommendations were
presented.
(b) The probation department and the child welfare services
department in each county shall jointly develop a written protocol to
ensure appropriate local coordination in the assessment of a minor
described in subdivision (a), and the development of recommendations
by these departments for consideration by the juvenile court. These
protocols shall require, which requirements shall not be limited to,
consideration of the nature of the referral, the age of the minor,
the prior record of the minor's parents for child abuse, the prior
record of the minor for out-of-control or delinquent behavior, the
parents' cooperation with the minor's school, the minor's functioning
at school, the nature of the minor's home environment, and the
records of other agencies that have been involved with the minor and
his or her family. The protocols also shall contain provisions for
resolution of disagreements between the probation and child welfare
services departments regarding the need for dependency or ward status
and provisions for determining the circumstances under which a new
petition should be filed to change the minor's status.
(c) Whenever If a minor who is under
the jurisdiction of the juvenile court of a county pursuant to
Section 300, 601, or 602 is alleged to come within the description of
Section 300, 601, or 602 by another county, the county probation
department or child welfare services department in the county that
has jurisdiction under Section 300, 601, or 602 and the county
probation department or child welfare services department of the
county alleging the minor to be within one of those sections shall
initially determine which status will best serve the best interests
of the minor and the protection of society. The recommendations of
both departments shall be presented to the juvenile court in which
the petition is filed on behalf of the minor, and the court shall
determine which status is appropriate for the minor. In making their
recommendation to the juvenile court, the departments shall conduct
an assessment consistent with the requirements of subdivision (b).
Any other juvenile court having jurisdiction over the minor shall
receive notice from the court in which the petition is filed within
five calendar days of the presentation of the recommendations of the
departments. The notice shall include the name of the judge to whom,
or the courtroom to which, the recommendations were presented.
(d) Except as provided in subdivision (e), nothing in this section
shall be construed to authorize the filing of a petition or
petitions, or the entry of an order by the juvenile court, to make a
minor simultaneously both a dependent child and a ward of the court.
(e) Notwithstanding subdivision (d), the probation department and
the child welfare services department, in consultation with the
presiding judge of the juvenile court, in any county may create a
jointly written protocol to allow the county probation department and
the child welfare services department to jointly assess and produce
a recommendation that the child minor
be designated as a dual status child, allowing the child
minor to be simultaneously a dependent child and
a ward of the court. This protocol shall be signed by the chief
probation officer, the director of the county social services agency,
and the presiding judge of the juvenile court prior to its
implementation. No A juvenile court
may shall not order that a
child minor is simultaneously a dependent child
and a ward of the court pursuant to this subdivision unless and until
the required protocol has been created and entered into. This
protocol shall include all o f the following :
(1) A description of the process to be used to determine whether
the child minor is eligible to be
designated as a dual status child.
(2) A description of the procedure by which the probation
department and the child welfare services department will assess the
necessity for dual status for specified children and the process to
make joint recommendations for the court's consideration prior to
making a determination under this section. These recommendations
shall ensure a seamless transition from wardship to dependency
jurisdiction, as appropriate, so that services to the child
minor are not disrupted upon termination of the
wardship.
(3) A provision for ensuring communication between the judges who
hear petitions concerning children for whom dependency jurisdiction
has been suspended while they are within the jurisdiction of the
juvenile court pursuant to Section 601 or 602. A judge may
communicate by providing a copy of any reports filed pursuant to
Section 727.2 concerning a ward to a court that has jurisdiction over
dependency proceedings concerning the child
minor .
(4) A plan to collect data in order to evaluate the protocol
pursuant to Section 241.2.
(5) Counties that exercise the option provided for in this
subdivision shall adopt either an "on-hold" system as described in
subparagraph (A) or a "lead court/lead agency" system as described in
subparagraph (B). In no case shall there be any simultaneous or
duplicative case management or services provided by both the county
probation department and the child welfare services department. It is
the intent of the Legislature that judges, in cases in which more
than one judge is involved, shall not issue conflicting orders.
(A) In counties in which an on-hold system is adopted, the
dependency jurisdiction shall be suspended or put on hold while the
child minor is subject to jurisdiction
as a ward of the court. When If it
appears that termination of the court's jurisdiction, as established
pursuant to Section 601 or 602, is likely and that reunification of
the child minor with his or her parent
or guardian would be detrimental to the child
minor , the county probation department and the child welfare
services department shall jointly assess and produce a recommendation
for the court regarding whether the court's dependency jurisdiction
shall be resumed.
(B) In counties in which a lead court/lead agency system is
adopted, the protocol shall include a method for identifying which
court or agency will be the lead court/lead agency. That court or
agency shall be responsible for case management, conducting
statutorily mandated court hearings, and submitting court reports.
(f) (1) A juvenile court joint assessment team shall be comprised
of representatives of mental health, child welfare, probation, and
other necessary agencies. Members of a juvenile court joint
assessment team are permitted to exchange and share information that
might otherwise be confidential under state law or regulation, as set
forth below:
(A) A statement, admission, or confession made by, or obtained
from, a minor as part of the joint assessment.
(B) A statement made, or information provided by, a social service
or mental health professional, or other person, as part of the joint
assessment.
(C) Any records or information obtained by a member of the
juvenile court joint assessment team as part of the joint assessment.
(D) Any information obtained in connection with the screening,
assessment, evaluation, or treatment provided by, or at the direction
of, a clinician or health care professional, or conducted in
conjunction with the joint assessment process.
(2) The information described in subparagraphs (A) to (D),
inclusive, of paragraph (1), shall be maintained in a manner that
ensures confidentiality, and shall not be further disclosed.
(3) A member of a juvenile court joint assessment team who
receives the information described in subparagraphs (A) to (D),
inclusive, of paragraph (1), shall maintain the privacy of the minor
and the confidentiality of that information.
(4) The information described in subparagraphs (A) to (D),
inclusive, of paragraph (1), shall not be admissible against the
minor at a civil or criminal hearing or proceeding other than the
joint assessment pursuant to this section, whether on the current
petition or in a future case.
SECTION 1. Section 827 of the Welfare and
Institutions Code is amended to read:
827. (a) (1) Except as provided in Section 828, a case file may
be inspected only by the following:
(A) Court personnel.
(B) The district attorney, a city attorney, or city prosecutor
authorized to prosecute criminal or juvenile cases under state law.
(C) The minor who is the subject of the proceeding.
(D) His or her parents or guardian.
(E) The attorneys for the parties, judges, referees, other hearing
officers, probation officers, and law enforcement officers who are
actively participating in criminal or juvenile proceedings involving
the minor.
(F) The superintendent or designee of the school district where
the minor is enrolled or attending school.
(G) A police or sheriff's department, or a county probation or
welfare department.
(H) The State Department of Social Services to carry out its
duties pursuant to Division 9 (commencing with Section 10000), and
Part 5 (commencing with Section 7900) of Division 12, of the Family
Code to oversee and monitor county child welfare agencies, children
in foster care or receiving foster care assistance, and out-of-state
placements.
(I) Authorized legal staff or special investigators who are peace
officers who are employed by, or who are authorized representatives
of, the State Department of Social Services, as necessary to the
performance of their duties to inspect, license, and investigate
community care facilities, and to ensure that the standards of care
and services provided in those facilities are adequate and
appropriate and to ascertain compliance with the rules and
regulations to which the facilities are subject. The confidential
information shall remain confidential except for purposes of
inspection, licensing, or investigation pursuant to Chapter 3
(commencing with Section 1500) and Chapter 3.4 (commencing with
Section 1596.70) of Division 2 of the Health and Safety Code, or a
criminal, civil, or administrative proceeding in relation thereto.
The confidential information may be used by the State Department of
Social Services in a criminal, civil, or administrative proceeding.
The confidential information shall be available only to the judge or
hearing officer and to the parties to the case. Names that are
confidential shall be listed in attachments separate to the general
pleadings. The confidential information shall be sealed after the
conclusion of the criminal, civil, or administrative hearings, and
may not subsequently be released except in accordance with this
subdivision. If the confidential information does not result in a
criminal, civil, or administrative proceeding, it shall be sealed
after the State Department of Social Services decides that no further
action will be taken in the matter of suspected licensing
violations. Except as otherwise provided in this subdivision,
confidential information in the possession of the State Department of
Social Services may not contain the name of the minor.
(J) Members of children's multidisciplinary teams, persons, or
agencies providing treatment or supervision of the minor.
(K) A judge, commissioner, or other hearing officer assigned to a
family law case with issues concerning custody or visitation, or
both, involving the minor, and the following persons, if actively
participating in the family law case: a family court mediator
assigned to a case involving the minor pursuant to Article 1
(commencing with Section 3160) of Chapter 11 of Part 2 of Division 8
of the Family Code, a court-appointed evaluator or a person
conducting a court-connected child custody evaluation, investigation,
or assessment pursuant to Section 3111 or 3118 of the Family Code,
and counsel appointed for the minor in the family law case pursuant
to Section 3150 of the Family Code. Prior to allowing counsel
appointed for the minor in the family law case to inspect the file,
the court clerk may require counsel to provide a certified copy of
the court order appointing him or her as the minor's counsel.
(L) A court-appointed investigator who is actively participating
in a guardianship case involving a minor pursuant to Part 2
(commencing with Section 1500) of Division 4 of the Probate Code and
acting within the scope of his or her duties in that case.
(M) A local child support agency for the purpose of establishing
paternity and establishing and enforcing child support orders.
(N) Juvenile justice commissions as established under Section 225.
The confidentiality provisions of Section 10850 shall apply to a
juvenile justice commission and its members.
(O) A current Member of the Legislature, if the case file pertains
to a deceased child who was within the jurisdiction of the juvenile
court pursuant to Section 300.
(P) Any other person who may be designated by court order of the
judge of the juvenile court upon filing a petition.
(2) Notwithstanding any other law and subject to subparagraph (A)
of paragraph (3), juvenile case files, except those relating to
matters within the jurisdiction of the court pursuant to Section 601
or 602, that pertain to a deceased child who was within the
jurisdiction of the juvenile court pursuant to Section 300, shall be
released to the public pursuant to an order by the juvenile court
after a petition has been filed and interested parties have been
afforded an opportunity to file an objection. Any information
relating to another child or which could identify another child,
except for information about the deceased, shall be redacted from the
juvenile case file prior to release, unless a specific order is made
by the juvenile court to the contrary. Except as provided in this
paragraph, the presiding judge of the juvenile court may issue an
order prohibiting or limiting access to the juvenile case file, or
any portion thereof, of a deceased child only upon a showing that
release of the juvenile case file or any portion thereof is
detrimental to the safety, protection, or physical or emotional
well-being of another child who is directly or indirectly connected
to the juvenile case that is the subject of the petition.
(3) Access to juvenile case files pertaining to matters within the
jurisdiction of the juvenile court pursuant to Section 300 shall be
limited as follows:
(A) If a juvenile case file, or any portion thereof, is privileged
or confidential pursuant to any other state law or federal law or
regulation, the requirements of that state law or federal law or
regulation prohibiting or limiting release of the juvenile case file
or any portions thereof shall prevail. Unless a person is listed in
subparagraphs (A) to (O), inclusive, of paragraph (1) and is entitled
to access under the other state law or federal law or regulation
without a court order, all those seeking access, pursuant to other
authorization, to portions of, or information relating to the
contents of, juvenile case files protected under another state law or
federal law or regulation, shall petition the juvenile court. The
juvenile court may only release the portion of, or information
relating to the contents of, juvenile case files protected by another
state law or federal law or regulation if disclosure is not
detrimental to the safety, protection, or physical or emotional
well-being of a child who is directly or indirectly connected to the
juvenile case that is the subject of the petition. This paragraph
shall not be construed to limit the ability of the juvenile court to
carry out its duties in conducting juvenile court proceedings.
(B) Prior to the release of the juvenile case file or any portion
thereof, the court shall afford due process, including a notice of
and an opportunity to file an objection to the release of the record
or report to all interested parties.
(4) A juvenile case file, any portion thereof, and information
relating to the content of the juvenile case file, may not be
disseminated by the receiving agencies to any persons or agencies,
other than those persons or agencies authorized to receive documents
pursuant to this section. Further, a juvenile case file, any portion
thereof, and information relating to the content of the juvenile case
file, may not be made as an attachment to any other documents
without the prior approval of the presiding judge of the juvenile
court, unless it is used in connection with and in the course of a
criminal investigation or a proceeding brought to declare a person a
dependent child or ward of the juvenile court.
(b) (1) While the Legislature reaffirms its belief that juvenile
court records, in general, should be confidential, it is the intent
of the Legislature in enacting this subdivision to provide for a
limited exception to juvenile court record confidentiality to promote
more effective communication among juvenile courts, family courts,
law enforcement agencies, and schools to ensure the rehabilitation of
juvenile criminal offenders as well as to lessen the potential for
drug use, violence, other forms of delinquency, and child abuse.
(2) Notwithstanding subdivision (a), written notice that a minor
enrolled in a public school, kindergarten to grade 12, inclusive, has
been found by a court of competent jurisdiction to have committed
any felony or any misdemeanor involving curfew, gambling, alcohol,
drugs, tobacco products, carrying of weapons, a sex offense listed in
Section 290 of the Penal Code, assault or battery, larceny,
vandalism, or graffiti shall be provided by the court, within seven
days, to the superintendent of the school district of attendance.
Written notice shall include only the offense found to have been
committed by the minor and the disposition of the minor's case. This
notice shall be expeditiously transmitted by the district
superintendent to the principal at the school of attendance. The
principal shall expeditiously disseminate the information to those
counselors directly supervising or reporting on the behavior or
progress of the minor. In addition, the principal shall disseminate
the information to any teacher or administrator directly supervising
or reporting on the behavior or progress of the minor whom the
principal believes needs the information to work with the pupil in an
appropriate fashion, to avoid being needlessly vulnerable or to
protect other persons from needless vulnerability.
Any information received by a teacher, counselor, or administrator
under this subdivision shall be received in confidence for the
limited purpose of rehabilitating the minor and protecting students
and staff, and shall not be further disseminated by the teacher,
counselor, or administrator, except insofar as communication with the
juvenile, his or her parents or guardians, law enforcement
personnel, and the juvenile's probation officer is necessary to
effectuate the juvenile's rehabilitation or to protect students and
staff.
An intentional violation of the confidentiality provisions of this
paragraph is a misdemeanor punishable by a fine not to exceed five
hundred dollars ($500).
(3) If a minor is removed from public school as a result of the
court's finding described in subdivision (b), the superintendent
shall maintain the information in a confidential file and shall defer
transmittal of the information received from the court until the
minor is returned to public school. If the minor is returned to a
school district other than the one from which the minor came, the
parole or probation officer having jurisdiction over the minor shall
so notify the superintendent of the last district of attendance, who
shall transmit the notice received from the court to the
superintendent of the new district of attendance.
(c) Each probation report filed with the court concerning a minor
whose record is subject to dissemination pursuant to subdivision (b)
shall include on the face sheet the school at which the minor is
currently enrolled. The county superintendent shall provide the court
with a listing of all of the schools within each school district,
within the county, along with the name and mailing address of each
district superintendent.
(d) Each notice sent by the court pursuant to subdivision (b)
shall be stamped with the instruction: "Unlawful Dissemination Of
This Information Is A Misdemeanor." Any information received from the
court shall be kept in a separate confidential file at the school of
attendance and shall be transferred to the minor's subsequent
schools of attendance and maintained until the minor graduates from
high school, is released from juvenile court jurisdiction, or reaches
the age of 18 years, whichever occurs first. After that time the
confidential record shall be destroyed. At any time after the date by
which a record required to be destroyed by this section should have
been destroyed, the minor or his or her parent or guardian shall have
the right to make a written request to the principal of the school
that the minor's school records be reviewed to ensure that the record
has been destroyed. Upon completion of any requested review and no
later than 30 days after the request for the review was received, the
principal or his or her designee shall respond in writing to the
written request and either shall confirm that the record has been
destroyed or, if the record has not been destroyed, shall explain why
destruction has not yet occurred.
Except as provided in paragraph (2) of subdivision (b), no
liability shall attach to any person who transmits or fails to
transmit any notice or information required under subdivision (b).
(e) For purposes of this section, a "juvenile case file" means a
petition filed in any juvenile court proceeding, reports of the
probation officer, and all other documents filed in that case or made
available to the probation officer in making his or her report, or
to the judge, referee, or other hearing officer, and thereafter
retained by the probation officer, judge, referee, or other hearing
officer.