BILL ANALYSIS                                                                                                                                                                                                    

                             Senator Mark Leno, Chair                S
                             2009-2010 Regular Session               B

          SB 962 (Liu)                                                
          As Amended March 11, 2010 
          Hearing date:  March 23, 2010
          Penal Code


                           INVOLVING THEIR MINOR CHILDREN

          Source:  Los Angeles Dependency Lawyers, Inc.

          Prior Legislation: None

          Support: The Executive Committee of the Family Law Section of  
          the State Bar                                               of  
          California; Taxpayers for Improving Public Safety

          Opposition:None known

                                         KEY ISSUE




                                                               SB 962 (Liu)

          The purpose of this bill is to provide, at the court's  
          discretion and subject to availability, videoconferencing or  
          teleconferencing for prisoners to participate in court  
          proceedings relating to the termination of their parental rights  
          or the court-ordered dependency of their child, as specified.


          Current law  creates in state government the Department of  
          Corrections and Rehabilitation ("CDCR"), headed by a secretary  
          who is appointed by the Governor, subject to Senate  
          confirmation, and serves at the pleasure of the Governor.  CDCR  
          consists of Adult Operations, Adult Programs, Juvenile Justice,  
          the Corrections Standards Authority, the Board of Parole  
          Hearings, the State Commission on Juvenile Justice, the Prison  
          Industry Authority, and the Prison Industry Board.  (Government  
          Code  12838 (a).) 

           Current law  creates the office of sheriff in each county and  

               Notwithstanding any other provision of law, except in  
               counties in which the sheriff, as of July 1, 1993, is not  
               in charge of and the sole and exclusive authority to keep  
               the county jail and the prisoners in it, the sheriff shall  
               take charge of and be the sole and exclusive authority to  
               keep the county jail and the prisoners in it, except for  
               work furlough facilities where by county ordinance the work  
               furlough administrator is someone other than the
               sheriff.  (Government Code  24000 and 26600 et seq.)  

           Current law  provides that the board of supervisors of any county  
          may, by resolution, establish a department of corrections, to be  
          headed by an officer appointed by the board, which shall have  
          jurisdiction over all county functions, personnel, and  
          facilities, or so many as the board names in its resolution,  
          relating to institutional punishment, care, treatment, and  



                                                               SB 962 (Liu)

          rehabilitation of prisoners,
          including, but not limited to, the county jail and industrial  
          farms and road camps, their functions and personnel.   
          (Government Code  23013.)   

           Current law  provides that, where a judicial proceeding concerns  
          the termination of the parental rights of any prisoner,<1> or  
          the adjudication of the child of a prisoner a dependent child of  
          the court, the superior court of the county in which the  
          proceeding is pending, or a judge thereof, shall order notice of  
          any court proceeding regarding the proceeding transmitted to the  
          prisoner, as specified.  (Penal Code  2625.)

           Current law  further requires the temporary removal of a prisoner  
          from an institution for the prisoner's production before the  
          court where a prisoner has advised the court of his or her  
          desire to be present, as specified.  (Id.)  "No proceeding  
          (terminating parental rights or dependency adjudication) may be  
          held . . . without the physical presence of the prisoner or the  
          prisoner's attorney, unless the court has before it a knowing  
          waiver of the right of physical presence signed by the prisoner  
          or an affidavit signed by the warden, superintendent, or other  
          person in charge of the institution, or his or her designated  
          representative stating that the prisoner has, by express  
          statement or action, indicated an intent not to appear at the  
          <1>   For purposes of this section the term "prisoner" is  
          defined to include "any individual in custody in a state prison,  
          the California Rehabilitation Center, or a county jail, or who  
          is a ward of the Department of the Youth Authority or who, upon  
          a verdict or finding that the individual was insane at the time  
          of committing an offense, or mentally incompetent to be tried or  
          adjudged to punishment, is confined in a state hospital for the  
          care and treatment of the mentally disordered or in any other  
          public or private treatment facility."



                                                               SB 962 (Liu)

          proceeding."<2>  (Id.)

           This bill would provide, at the court's discretion and subject  
          to availability and consistency with other laws,  
          videoconferencing or teleconferencing options for prisoners to  
          participate in the proceedings described above.  

           Specifically, this bill  would provide that a prisoner who is a  
          parent of a child involved in a dependency hearing described in  
          this section and who has either waived his or her right to  
          physical presence at the hearing, or who has not been ordered  
          before the court may, at the court's discretion, in order to  
          facilitate the parent's participation, be given the opportunity  
          to participate in the hearing by videoconference, if that  
          technology is available, and if that participation otherwise  
          complies with the law.  If videoconferencing technology is not  
          available, this bill would provide that teleconferencing may be  
          utilized to facilitate parental participation.  

           This bill  would state that, "(b)ecause of the significance of  
          dependency court hearings for parental rights and children's  
          long-term care, physical attendance by the parent at the  
          hearings is preferred to participation by videoconference or  
          teleconference.  This section does not authorize the use of  
          videoconference or teleconference to replace in-person family  
          visits with prisoners."
          <2> These provisions expressly exclude "a prisoner sentenced to  
          death, whether or not that sentence is being appealed, in any  
          action or proceeding in which the prisoner's parental rights are  
          subject to adjudication."  (Penal Code  2625(g).)



                                                               SB 962 (Liu)

           This bill  would provide that a "prisoner subject to this section  
          shall not lose internal job placement opportunities, be removed  
          from a court-ordered course, or be denied any earned privileges  
          as a result of his or her participation in the proceedings  
          described in this section, whether in person or by  
          videoconference or teleconference, unless the prisoner is absent  
          from the institution for this purpose for more than 10 days."

           This bill  additionally would authorize the Department of  
          Corrections and Rehabilitation to "establish a pilot project to  
          facilitate the participation of incarcerated parents in  
          dependency court hearings regarding their children."

           This bill  would provide that the "costs of the pilot project  
          shall be funded with private funds and shall be implemented only  
          after a determination is made by the Department of Finance that  
          private donations, sufficient to fully support the activities of  
          the project, have been deposited with the state."
          The severe prison overcrowding problem California has  
          experienced for the last several years has not been solved.  In  
          December of 2006 plaintiffs in two federal lawsuits against the  
          Department of Corrections and Rehabilitation sought a  
          court-ordered limit on the prison population pursuant to the  
          federal Prison Litigation Reform Act.  On January 12, 2010, a  
          federal three-judge panel issued an order requiring the state to  
          reduce its inmate population to 137.5 percent of design capacity  
          -- a reduction of roughly 40,000 inmates -- within two years.   
          In a prior, related 184-page Opinion and Order dated August 4,  
          2009, that court stated in part:

               "California's correctional system is in a tailspin,"  



                                                               SB 962 (Liu)

               the state's independent oversight agency has reported.  
               . . .  (Jan. 2007 Little Hoover Commission Report,  
               "Solving California's Corrections Crisis: Time Is  
               Running Out").  Tough-on-crime politics have increased  
               the population of California's prisons dramatically  
               while making necessary reforms impossible. . . .  As a  
               result, the state's prisons have become places "of  
               extreme peril to the safety of persons" they house, .  
               . .  (Governor Schwarzenegger's Oct. 4, 2006 Prison  
               Overcrowding State of Emergency Declaration), while  
               contributing little to the safety of California's  
               residents, . . . .   California "spends more on  
               corrections than most countries in the world," but the  
               state "reaps fewer public safety benefits." . . .  .   
               Although California's existing prison system serves  
               neither the public nor the inmates well, the state has  
               for years been unable or unwilling to implement the  
               reforms necessary to reverse its continuing  
               deterioration.  (Some citations omitted.)

               . . .

               The massive 750% increase in the California prison  
               population since the mid-1970s is the result of  
               political decisions made over three decades, including  
               the shift to inflexible determinate sentencing and the  
               passage of harsh mandatory minimum and three-strikes  
               laws, as well as the state's counterproductive parole  
               system.  Unfortunately, as California's prison  
               population has grown, California's political  
               decision-makers have failed to provide the resources  
               and facilities required to meet the additional need  
               for space and for other necessities of prison  
               existence.  Likewise, although state-appointed experts  
               have repeatedly provided numerous methods by which the  
               state could safely reduce its prison population, their  
               recommendations have been ignored, under funded, or  
               postponed indefinitely.  The convergence of  
               tough-on-crime policies and an unwillingness to expend  
               the necessary funds to support the population growth  



                                                               SB 962 (Liu)

               has brought California's prisons to the breaking  
               point.  The state of emergency declared by Governor  
               Schwarzenegger almost three years ago continues to  
               this day, California's prisons remain severely  
               overcrowded, and inmates in the California prison  
               system continue to languish without constitutionally  
               adequate medical and mental health care.<3>

          The court stayed implementation of its January 12, 2010 ruling  
          pending the state's appeal of the decision to the U.S. Supreme  
          Court.  That appeal, and the final outcome of this litigation,  
          is not anticipated until later this year or 2011.

           This bill  does not appear to aggravate the prison overcrowding  
          crisis described above.


          1.   Stated Need for This Bill

           The author states in part:

               A substantial majority of Californians in the criminal  
               justice system are parents. The California Research  
               Bureau estimates that 67% of male inmates are fathers  
               and 79% of female inmates are mothers (2000).  Over  
               the last 15 years, an increasing number of adults have  
               been incarcerated under the state's more strict  
               criminal sentencing policies.  As a consequence, the  
               number of children whose parents are in prison has  

          <3>   Three Judge Court Opinion and Order, Coleman v.  
          Schwarzenegger, Plata v. Schwarzenegger, in the United States  
          District Courts for the Eastern District of California and the  
          Northern District of California United States District Court  
          composed of three judges pursuant to Section 2284, Title 28  
          United States Code (August 4, 2009).



                                                               SB 962 (Liu)

               These children often enter and remain in the child  
               welfare system because logistical issues prevent  
               incarcerated parents from maintaining their parental  
               rights, irrespective of their parenting practices.   
               Incarcerated parents often waive physical appearance  
               at a hearing, not because they are unwilling to be  
               present and participate, but because  attending may  
               result in the loss of good time credits or  
               rehabilitation program eligibility  . Often these are  
               the  very credits or program participation required by  
               the family reunification case plan  (Family and  
               Juvenile Law Advisory Committee).  If a parent elects  
               to attend a dependency hearing in person, hearing and  
               travel time can take up to 10 days, greatly damaging  
               the parent's ability to fulfill the family  
               reunification requirements. 

               Given the length of an average sentence for women  
               prisoners, it is likely that parental rights will be  
               terminated unless the state can remove barriers to the  
               family reunification process (CRB, 2003). Termination  
               of parental rights is a striking example of the ways  
               in which the needs, rights, and obligations of  
               parents, families, children, and the state can come  
               into conflict (CRB, 2003).  The process is  
               irreversible and effectively severs a parent's rights  
               over his or her child, as well as the child's extended  
               family relationships (CRB, 2003).  For years,  
                researchers have cited transportation difficulties to  
               as a major barrier to involvement in dependency  
               hearings  and have urged policy makers to fix this  
               problem (CRB, 2003).  In the wake of fiscal distress,  
                counties in other states have already begun utilizing  
               video-conferencing for inmates as a cost-saving  
               measure  . 

               SB 962 seeks to prevent unnecessary termination of  
               parental rights by allowing for a cost-savings  
               solution. This bill  allows  incarcerated parents to  
               participate in a child dependency hearing via  



                                                               SB 962 (Liu)

               video-conference --  if the technology is available  --  
               for any contested hearing or a proceeding that could  
               result in termination of parental rights. The bill  
               ensures a prisoner in custody shall not lose internal  
               job placement opportunities, be removed from a  
               court-ordered course, or be denied privileges earned  
               in a correctional institution due to participation in  
               these proceedings unless the inmate is absent from the  
               institution for longer than ten days. In addition, a  
               two-year pilot project to facilitate dependency  
               hearings via video-conferencing will be conducted  
               through collaboration between Los Angeles Dependency  
               Lawyers (LADL) and a women's institution. . . .

               The Legislature should remove barriers to  
               participation in dependency hearings in order to  
               promote family reunification and decrease the number  
               of children in the child welfare system.



          2.   What This Bill Would Do
          As explained above, this bill would allow for the use of  
          conferencing technology for prisoners to participate in judicial  
          proceedings involving their parental rights or a dependency  
          petition for their child under Welfare and Institutions Code  
          section 300.  Current law provides prisoners with the right to  
          attend these proceedings; this bill would provide additional  
          conferencing technology options for how they could participate,  
          subject to availability, at the discretion of the court, and if  
          the participation otherwise complies with the law.

          This bill also would provide that prisoners shall not lose  
          internal job placement opportunities, be removed from a  
          court-ordered course, or be denied any earned privileges as a  
          result of his or her participation in these proceedings, whether  
          in person or by videoconference or teleconference, unless the  
          prisoner is absent from the institution for this purpose for  
          more than 10 days.

          Finally, this bill would authorize the Department of Corrections  
          and Rehabilitation to establish a pilot project to facilitate  
          the participation of incarcerated parents in dependency court  
          hearings regarding their children, to be funded privately, as  

          3.   Children of Incarcerated Parents
          As explained by the author, the incarceration of a parent has  
          many collateral effects on children.  Consistent with the  
          author's statement, a March 2009 paper published by the National  
          Conference of State Legislatures stated:

               Research suggests that intervening in the lives of  
               incarcerated parents and their children to preserve  
               and strengthen positive family connections can yield  
               positive societal benefits in the form of reduced  



                                                               SB 962 (Liu)

               recidivism, less intergenerational criminal justice  
               system involvement, and promotion of healthy child  
               development. In the words of one prominent researcher,  
               "[s]tudies . . . indicate that families are important  
               to prisoners and to the achievement of major social  
               goals, including the
               prevention of recidivism and delinquency."<4>

          With respect to involving inmates who are parents in court  
          proceedings involving their minor children, the paper noted:

               Although inmate parents are vulnerable to losing  
               parental rights, they often are unaware of this  
               vulnerability or know very little about what they can  
               do to prevent
               loss of rights.  Even if they understand what is at  
               stake, administrative and logistical factors can  
               prevent them from attending critical court hearings.   
               Key to addressing these issues is ensuring that inmate  
               parents are consistently represented by attorneys who  
               are familiar not only with dependency litigation, but  
               also with the criminal justice system and applicable  
               corrections policies that affect incarcerated parents.  
                Addressing this problem also will require improved  
               coordination among law enforcement, the judiciary,  
               corrections and child welfare. California law, for  
               example, authorizes the presiding judge of the  
               juvenile court in each county to convene  
               representatives of these systems to develop protocols  
               to ensure notification, transportation and presence of  
               an incarcerated parent
               at all court proceedings that affect his or her  

          <4>   Children of Incarcerated Parents, p. 1 ( Steve Christian   
          (National Conference of State Legislatures, March 2009)(footnote  
          omitted) ;  
          df  .  
          <5>   Id. at p. 11 (footnotes omitted).


                                                               SB 962 (Liu)



          4.  Double-Referral

           This bill has been double-referred to the Senate Judiciary  
          Committee as a second referral.