BILL ANALYSIS SENATE JUDICIARY COMMITTEE Senator Ellen M. Corbett, Chair 2007-2008 Regular Session SB 39 S Senator Migden B As Amended April 19, 2007 Hearing Date: April 24, 2007 3 Welfare and Institutions Code 9 GMO:rm SUBJECT County Welfare Agencies: Public Access to Juvenile Case Files DESCRIPTION This bill would: (1) provide for the release by a county welfare agency of specified information regarding a deceased child where the death is reasonably suspected to be the result of abuse or neglect, within five days of the child's death; (2) where a child's death is substantiated to be from abuse or neglect, establish a process for the release of specified documents in a county welfare agency's juvenile case file, without court review and for the release of other documents in the case file after a petition is filed and opportunity is given for interested parties to object to the release of those other documents; and (3) clarify existing law relating to the release of a juvenile case file when a child has died due to abuse or neglect, including the presumption of disclosure unless statutory grounds for non- or partial-disclosure or redaction of information exist. (more) SB 39 (Migden) Page 2 The bill contains legislative declarations and findings regarding the need for quicker access to information contained in a juvenile case file where a child died as a result of abuse or neglect. (This analysis reflects author's amendments to be offered in Committee.) BACKGROUND Except where a child has died, all case files of children who are dependents or wards of the juvenile court are kept confidential, with specified exemptions. In response to several well-publicized cases where juveniles died allegedly as a result of negligence by county child protective agency and other county agencies involved in the juvenile court proceedings, the Legislature in 1999 established a streamlined process for any person to obtain access to a juvenile case file where a child has died. [SB 199 (Polanco, Chapter 984, Statutes of 1999).] The process, embodied in 827(a)(2) of the Welfare and Institutions Code, allows any interested party to petition the court to access the juvenile case file of a deceased child, requires notice and an opportunity for specified parties to object in a hearing, and allows information in the deceased child's file that relates to or identifies another child to be removed or redacted from the file before its release. Under the same procedure, the court still may limit or prohibit access to the file, if that release of the file or any portion of the file would be detrimental to another child who is or was within the jurisdiction of the juvenile court. Other than the process described in 827(a)(2) for a deceased child's records, the juvenile case files may be inspected, without first obtaining a court order, by city attorneys and prosecutors handling criminal or juvenile cases, judges, referees, hearing officers, law enforcement handling the criminal or juvenile proceedings involving the minor, the superintendent of the school district where the minor is enrolled, children's multidisciplinary teams, and persons or agencies providing treatment or supervision of the child. Any other person seeking to inspect juvenile case files must file a petition, and the court must inspect the file and determine what information, if any, should be SB 39 (Migden) Page 3 released. Here the court must rely on state or federal prohibitions against disclosure of certain information (such as confidential psychologist's reports, which may be accessed by even an authorized person such as a parent only after a noticed hearing) to determine whether information sought should be released. In the intervening years since passage of SB 199, numerous cases have been reported in the media about children dying due to abuse or neglect while at home or in foster care or other placements made by county welfare departments. According to the State Death Review Council (the "Council"), official reports of child abuse deaths represent a significant undercount of the actual number of child abuse and neglect fatalities. The Council's 2005 report states that in 2002, there were 140 deaths officially reported as resulting from child abuse or neglect. As recently as this month in Sacramento, a 12-year old girl whom the county child protective services visited at least seven times died weighing only 25 pounds and with wounds so large that bone was visible. Proponents of SB 39 contend that the procedure established in 827(a)(2) for accessing files of children who died as a result of abuse or neglect has proven to be difficult and too costly to use because the courts lack clear guidance, resulting in delays as well as inconsistencies between counties on what information is required to be disclosed. This end result frustrates the ability to review these cases of child death promptly and to advocate for changes to prevent any other child from suffering the same fate. This bill proposes to establish an expedited process for the release of specific information in county welfare agency records that are related to the death of a child and to clarify the presumption of disclosure in existing law, subject to the existence of statutory grounds to limit or prohibit disclosure. CHANGES TO EXISTING LAW Existing law requires the juvenile case file of a dependent child or ward of the court to be kept confidential, except that specified persons or entities are authorized to inspect those records and, on a petition and noticed SB 39 (Migden) Page 4 hearing, disclosure of any or all of the files may be ordered by the court to any interested party. [Welfare & Institutions Code 827(a). All references are to the Welfare & Institutions Code, unless otherwise indicated.] Existing law provides that juvenile case files pertaining to a deceased child who was within the jurisdiction of the juvenile court shall be released pursuant to an order of the court after the filing of a petition, an opportunity for interested parties to object, and a hearing on the petition. [ 827(a)(2).] Existing case law provides that a deceased child is "within the jurisdiction of the juvenile court" if the court may adjudge that child to be a dependent of the court under 300, even where no juvenile petition has been filed. [ In re Elijah S. (2005) 125 Cal.App.4th 1532.] This bill would affirm the presumption under 827(a)(2) in favor of the release of information when a child is deceased unless statutory grounds for non- or partial disclosure or redaction of information exist. (See Comment 5.) This bill would affirm the holding in Pack v. Kings County Human Services Agency (2001) 89 Cal.App.4th 821 that where the child whose records are sought has died, no balancing or weighing of interests is required except where the interests of another child are involved. (See Comment 5.) This bill would revise the process for accessing information about a deceased child where the cause of death is suspected or determined to be from abuse or neglect, as follows: (a) a county welfare agency (the custodian of records) would be required, within five days of death of a child, to disclose specified information about the deceased child where there is a reasonable suspicion that the child died as a result of abuse or neglect (See Comment 3a); (b) a county welfare agency (the custodian of records) would be required, upon request, to release without need of a petition or judicial review, specified documents to a SB 39 (Migden) Page 5 requesting party, where (1) the county child protective services determined that abuse or neglect was substantiated, or (2) a law enforcement investigation concluded that abuse or neglect occurred, or (3) the coroner or medical examiner concluded that the deceased child had suffered abuse or neglect (See Comment 3b); (c) for all other documents or information in the juvenile case file, a requesting party may petition the court for an order to release the information. The petition would be served on the custodian of records and interested parties known to the petitioner, and opportunity to object would be provided. If no objection is received by the court, the court would review the request and determine whether the information requested should be released. If objection from an interested party is received, the court would set a hearing and rule on the request based on documents on file and arguments made at the hearing. Any information relating to another child would be redacted from the file prior to its release. A court may also issue an order limiting or prohibiting access to the case file upon a showing by preponderance of evidence that the release of the information is detrimental to the safety, protection, or physical or emotional well-being of another child who is connected to the juvenile case of the deceased child. (This provision is referenced in Comment 4.) This bill would make an order of the court pursuant to (c) above immediately reviewable by petition to the appellate court for the issuance of an extraordinary writ. This bill would require, prior to the release of any record pursuant to (b) above, the agency that maintains the records or its representative to redact specified information. (See Comment 3d.) This bill would require the agency that maintains the juvenile case files pertaining to the deceased child to compile a log identifying, with particularity, all remaining documents contained in the case files. The Department of Social Services would be tasked with SB 39 (Migden) Page 6 developing the form to be used for these disclosures. This bill contains legislative findings and declarations relating to the number of child deaths due to abuse and neglect, and the need for an expedited decision to release juvenile case files so as to not lose the opportunity to effect positive change. COMMENT 1. Author's Amendments The author's amendments to be offered in committee are the result of extensive discussions among the author's office, the sponsors, committee staff and interested parties such as the County Welfare Directors Association (CWDA) of California. A mock-up of the bill, as to be amended by author's amendments, is provided for the committee's convenience. The amendments reflect a three-part approach to increasing public access to information surrounding the death of a child from abuse or neglect. First is an informational announcement about the death (i.e., name and gender, date of death, whether an investigation is or will be commenced). Second is a list of documents related to the child's death that may be requested and provided without court review (because they will always be relevant to the death or cause of death of the child), but redacted for information that is privileged, confidential, or not subject to disclosure pursuant to some other law, or redacted for information about another child who is directly or indirectly connected with the deceased child's juvenile case. Third is an expedited court procedure for access to other documents not provided under the first two categories, with additional legislative guidance given to courts in reviewing 827(a)(2) petitions for disclosure of records of a deceased child. Other amendments would clarify the Legislature's SB 39 (Migden) Page 7 presumption of disclosure of the juvenile case file where a child died from abuse or neglect, unless the statutory grounds for redaction, or limitation or prohibition of disclosure exist. This presumption was intended by the enactment of 827(a)(2) in 1999. 2. Need for the bill According to the author, "public policy experts, concerned decision-makers, and children's advocates are forced to file a legal petition to obtain non-confidential information about the deaths of foster care children who are killed by abuse and neglect, even though such non-confidential information might help these stakeholders formulate recommendations for systemic reform; even though time may be of essence to prevent impending deaths of other children. The standards for disclosure under current law are so vague and provide so much discretion to the juvenile court judge, that counties which - for whatever reason - want to avoid public scrutiny of their operations when children die on their watch can find and do find an abundance of grounds for generating litigation. This causes delays that thwart one of the aims of public disclosure - which is to possibly prevent future deaths - and causes litigation costs that effectively block non profits from seeking documents. And counties do resist. The Children's Advocacy Institute, for example, has had to resort to litigation against Orange county just to obtain the raw 'tombstone' data permitted by Government Code 6252.6 [the California Public Records Act]. Likewise, current law does not explicitly or predictably protect the identities of other individuals in the case file (including the social workers), thereby providing an additional incentive for the counties and other interested parties to litigate against disclosure." The author and proponents believe that the changes SB 39 would make to the process of disclosing information related to a deceased child whose death was caused by abuse and neglect will spur reform and save the lives of children whether they are at home or at a foster care SB 39 (Migden) Page 8 placement. 3. Files and information to be disclosed without court review According to the sponsors of the bill, obtaining juvenile case files about children who died because of abuse or neglect has not been as easy as the current 827 (a)(2) language reads. The process is tedious and subject to delays, and results in very costly efforts that don't always produce good information, they say. Furthermore, because they do not know what is in a particular case file, it is difficult to target their requests for information. a. Pre-substantiation report Under SB 39, the three-part approach to obtaining information surrounding the death of a child, whether there has been contact with the county child protective services agency or county welfare agency or not, would begin with a release of information by the county welfare agency (the custodian of records) stating the name and gender of the child, the date of death, and whether the death is under investigation by the child welfare agency or by law enforcement. This "pre-substantiation report" alerts the public that a child has died due to abuse or neglect or both. b. After death from abuse or neglect has been substantiated The second tier of documents in the juvenile case file, to be released upon request without court review, consists of various documents related to the circumstances surrounding the event of death of the child. These documents are deemed to be highly probative and likely to contain information relevant to the cause of death of the child without unduly impinging another person's privacy or confidential or privileged information which would be redacted. In order to access these documents, the county child protective services agency had to have substantiated child abuse or neglect of the deceased child; or the law enforcement investigation concluded the death was SB 39 (Migden) Page 9 caused by abuse or neglect; or the coroner or medical examiner concluded that the deceased child suffered abuse or neglect. These documents are: The emergency response referral information form and the emergency response notice of referral disposition form completed by the child welfare agency; Any "cross reports" completed by the child welfare agency to law enforcement relating to the deceased child; All risk and safety assessments of the child's placement at the time of death completed by the child welfare agency; All health care records, except for mental health records, of the deceased child related to the child's cause of death and previous injuries reflective of a pattern of abuse or neglect; and Copies of police reports regarding the person or persons against whom the child abuse or neglect was substantiated. If the child was living with a parent or guardian at the time of his or her death, all previous referrals of abuse or neglect of the deceased child while living with that parent or guardian would be disclosed. If the child died while in foster care, the following documents must be provided in addition to the five documents named above: Records pertaining to the foster parents' initial licensing and renewals and types of licenses held, if these records are in the case file. The CWDA suggested these records may not be in the court's or their own case files, since it is Community Care Licensing that regulates foster parents; All reported licensing violations, such as notices of action, if in the case file; and Records of training completed by the foster parents, if in the case file. Suggested amendments: There are references to "county child welfare agency," "local child welfare agency," SB 39 (Migden) Page 10 "child protective services agency," as well as to "county welfare agency" in the text of the bill. A consistent reference should be used in order to avoid confusion as to who is responsible for releasing the records or who is in control of the records to be released. c. Release of documents within 10 business days Under SB 39, the "custodian of records" for the local child welfare agency must release the documents identified above in (a) and (b) within 10 business days of the request or the disposition of the investigation, whichever is later. The bill does not provide for any penalty if the custodian of records fails to release the requested documents or fails to release them within 10 days of the request. Of course, the requester can go to court and file a petition to compel the custodian of records to release the records or files. But that would defeat the purpose of setting up an administrative release of the records, bypassing court review, which this bill intends to do. By providing some sort of penalty, the custodian will be motivated to act promptly (although the bad publicity that could be generated by a refusal or failure to provide the records or files may be enough). Upon receiving a request for the documents listed above in Comments 2a and 2b, the custodian of records must serve a copy of the request on all interested parties. If anyone objects, including the custodian of records, they may petition the juvenile court for relief to prevent release of the documents pursuant to 827(a)(2)(D). (See Comment 4). d. Redactions required Prior to the release of any of the documents named above, the custodian of records would be required, under SB 39, to redact: (1) the names, addresses, telephone numbers, ethnicity, religion, or any other identifying information of any person or institution, other than the county or the department of social SB 39 (Migden) Page 11 services, that is mentioned in the documents listed in those documents; (2) any information that would, after consultation with the district attorney, jeopardize a criminal investigation or proceeding; and (3) any information that is confidential or privileged or subject to non-disclosure pursuant to any other state or federal law. There were concerns raised about protecting confidential information contained in the case files that relate to other than another child, and what effect this bill would have on the privacy interests of the persons to whom the information pertain. Under current 827(a)(2), the juvenile case file is presumed to be accessible and information therein must be released when requested, except in two cases: (1) information about another child may be redacted; and (2) the presiding judge may issue an order limiting or prohibiting disclosure only upon a showing of detriment to another child who is directly or indirectly connected to the deceased child's juvenile case file. Thus, only information about another child is absolutely protected by 827(a)(2), and no "balancing" of interests occurs in this scenario. Under SB 39, information about third parties other than another child who may be directly or indirectly connected to the juvenile case of the deceased child could be protected by redaction of their personally identifying information prior to release of the information by the county welfare agency (custodian of records). A person whose name and the fact that she has HIV are found in the deceased child's juvenile case file has only one recourse both under existing law and under this bill (provided having HIV was not a factor in the child's death): redaction of his or her name from the file before it is released. The ability to redact confidential, privileged, or other information not subject to disclosure pursuant to law from the file would go a long way to appease those concerned that the turnover of documents by the custodian of records would expose well-guarded private SB 39 (Migden) Page 12 information, or that unnecessary inquiries by the media or by nosy neighbors would get in the way of the work they have to do. e. Notice to counsel for children in juvenile case files; objection by petition SB 39 would require the custodian of records of the county welfare agency's juvenile case files, upon receipt of the request for the administrative release of the records in a juvenile case file, to serve a copy of the request on counsel for the children (including the deceased child's) who are identified in those documents. If counsel objects, including the custodian of records, to the request, they may petition the court in the same manner as an objection to a petition under 827(a)(2) may be made. 4. Court petition and noticed hearing for all other documents in juvenile case file SB 39 also would require the agency that maintains the records (county welfare agency, usually) to compile a log identifying, with particularity, all remaining documents contained in the juvenile case file. This log would be produced along with the documents disclosed in Comments 3a and 3b. The Department of Social Services would be directed to prescribe forms for this purpose. For these remaining records, SB 39 would establish a procedure for review by the court prior to disclosure. This procedure is described in detail on page 4 of this analysis and is proposed as the new 827(a)(2)(D). 5. Other 827(2)(a) "fixes" Proponents of SB 39 raised some concerns about the "ambiguities" in the current language of 827(a)(2) [the deceased child exception to non-disclosure of juvenile case files] and the resulting variances in interpretation and implementation by courts in different counties. To provide more clarity, several provisions are being amended into SB 39 that would: SB 39 (Migden) Page 13 (a) clarify that where a presiding judge is considering limiting or prohibiting access to a juvenile case file, a showing that release of the information is detrimental to the well-being of another child must be made by preponderance of evidence; (b) affirm that 827(a)(2) represents a presumption in favor of release of documents when a child is deceased, unless statutory grounds for redaction or limitation or prohibition of the release of information exist; (c) that no balancing of interests is called for under 827(a)(2) except where the interests of another child is involved; and (d) establish clearly the procedure for a court petition to obtain other records not available through the administrative release contemplated in Comment 3, including an expedited procedure when no objection has been filed, and the procedure for obtaining an expedited appellate review of an adverse court ruling. 6. Supporters' arguments and opponents' earlier concerns The Sacramento Branch of the NAACP supports SB 39 and argues why changes in the way information about a child who died as a result of abuse or neglect are needed: By every objective measure, Californians are failing in our moral responsibility to these children [who are removed from their parents by state and county authorities] and the most poignant example of this failure is how we currently deal with the tragedy of those children who die - sometimes brutally die - while under our custody. So shrouded in secrecy are the deaths of our children that we do not even have an accurate and SB 39 (Migden) Page 14 reliable count of how many die each year due to the same kind of abuse and neglect that prompted us to remove the child from the care of its parents in the first place. SB 39 does not allow the disclosure of any information that is not already susceptible to public disclosure?The problem [the bill] seeks to fix is this: as current law is being applied, only institutions or people of wealth who can afford to pay for a protracted litigation can actually obtain such information. This wealth barrier effectively blocks access to nonprofits, community groups, even some relatives, who want answers to the most basic questions to ensure their moral obligations is being fulfilled, questions that every citizen ought to be able to ascertain answers to about how their tax-funded governments are operating. Questions such as: Why did the child die? How? Could the child's death and suffering have been prevented? Are our state and county governments...doing what they can?to ensure that such a death will never be repeated?... The Service Employees International Union, California State Council, opposes the measure because it does not go far enough in protecting "very sensitive and personal information" about third parties in the juvenile case files. "Although this measure provides that certain information would be redacted, [disclosure of very sensitive and personal information] could lead to unwarranted and inappropriate exposure for individuals connected to the child. The mere striking out of names and contact information does not seem sufficient, especially when identities would be readily apparent in small communities or high-profile cases." SB 39 would allow redaction of more than just names and contact information. It would allow redaction of information that would be confidential or privileged under other state or federal statutes. Lastly, the Legislature made its intent clear when it enacted 827(a)(2): when a child dies from abuse or neglect, the need for public access to the juvenile case file is presumed and records will be released unless statutorily SB 39 (Migden) Page 15 prohibited or limited and the court orders otherwise. SEIU's objections were made prior to the author's amendments being offered in committee. It is not known whether their concerns have been addressed fully or not. The County Welfare Directors of California originally opposed SB 39, but with the amendments to be offered by the author in Committee, it has moved its position to "support." Support: County Welfare Directors Association of California (CWDA); California Nurses Association; National Association for the Advancement of Colored People (NAACP) Opposition: SEIU HISTORY Source: Children's Advocacy Institute and National Center for Youth Law Related Pending Legislation: AB 1299 (Fuller) would amend 827(a)(1) to allow members of multidisciplinary teams engaged in the prevention and treatment of child abuse to inspect juvenile case files. Prior Legislation: SB 199 (Polanco, Ch.984, Stats. 1999) See Background **************