BILL ANALYSIS SENATE COMMITTEE ON PUBLIC SAFETY Senator Mark Leno, Chair S 2009-2010 Regular Session B 9 6 2 SB 962 (Liu) As Amended March 11, 2010 Hearing date: March 23, 2010 Penal Code AA:dl PRISONERS: PARTICIPATION IN COURT PROCEEDINGS INVOLVING THEIR MINOR CHILDREN HISTORY 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 SHOULD VIDEOCONFERENCING OR TELECONFERENCING, IF ORDERED BY A COURT AND AVAILABLE, BE PROVIDED 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? PURPOSE (More) SB 962 (Liu) PageB 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 includes: 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 (More) SB 962 (Liu) PageC 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." (More) SB 962 (Liu) PageD 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).) (More) SB 962 (Liu) PageE 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." RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS 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," (More) SB 962 (Liu) PageF 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 (More) SB 962 (Liu) PageG 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. COMMENTS 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 grown. ---------------------- <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). (More) SB 962 (Liu) PageH 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 (More) SB 962 (Liu) PageI 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. (More) 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 specified. 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 (More) SB 962 (Liu) PageK 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 child.<5> --------------------------- <4> Children of Incarcerated Parents, p. 1 ( Steve Christian (National Conference of State Legislatures, March 2009)(footnote omitted) ; http://www.ncsl.org/documents/cyf/childrenofincarceratedparents.p df . <5> Id. at p. 11 (footnotes omitted). SB 962 (Liu) PageL WOULD THIS BILL HAVE A POSITIVE IMPACT ON THE CHILDREN AND FAMILIES OF INCARCERATED PARENTS? HOW, IF AT ALL, WOULD THIS BILL IMPACT OPERATIONS AT CDCR INSTITUTIONS? 4. Double-Referral This bill has been double-referred to the Senate Judiciary Committee as a second referral. ***************