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
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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)
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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
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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
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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
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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
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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
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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
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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
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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,"
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"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
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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
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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:
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(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
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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
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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
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