BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
SB 962 (Liu)
As Amended March 11, 2010
Hearing Date: April 13, 2010
Fiscal: Yes
Urgency: No
KB:jd
SUBJECT
Prisoners: Adjudication of Parental Rights: Participation
DESCRIPTION
This bill would, among other things, allow for the use of video
or teleconference 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.
BACKGROUND
Over the past eight years the California Research Bureau has
issued a series of reports focusing on California law as it
relates to the lives of incarcerated prisoners and their
children. (See Children of Incarcerated Parents, Charlene Wear
Simmons, CRB Note Vol. 7, No. 2, March 2000; Children of
Arrested Parents: Strategies to Improve Their Safety and
Well-Being, Clare M. Nolan, CRB 03-011, July 2003; California
State Prisoners With Children: Findings from the 1997 Survey of
Inmates in State and Federal Correctional Facilities, M. Anne
Powell, M.S.W., CRB 03-014, November 2003.) The reports have
highlighted the state's lack of clear policies and laws on how
criminal justice authorities, as well as the child welfare
system, should respond to circumstances and issues raised by
incarcerated parents and their children. As explained in the
reports, there are profound social, mental, and health
implications for children whose parents are incarcerated. These
problems have become even more pressing as the state's prison
population, particularly the female population, continues to
increase dramatically.
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This bill seeks to address one aspect of the problems that exist
for incarcerated parents and their children, particularly those
who end up the subject of dependency proceedings. Specifically,
in order to facilitate participation by incarcerated parents in
judicial proceedings involving dependency petitions for their
children or their parental rights, this bill would allow for
participation via video or teleconferencing in specified
circumstances.
This bill was approved by the Senate Public Safety Committee on
March 23, 2010 by a vote of 7-0.
CHANGES TO EXISTING LAW
Existing law provides that, where a judicial proceeding concerns
the termination of the parental rights of any prisoner, or the
dependency proceeding involving a prisoner's child, 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. (Pen. Code Sec. 2625.)
Existing 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. (Pen. Code Sec.
2625.)
Existing law provides that 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 proceeding. (Pen. Code Sec.
2625.)
This bill would provide that a prisoner who is a parent of a
child involved in a dependency hearing 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
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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, because 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 bill would provide that it does not authorize the use of
videoconference or teleconference to replace in-person family
visits with prisoners.
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.
COMMENT
1. Stated need for the bill
The author states:
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
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number of children whose parents are in prison has grown.
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 ? .
? 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.
2.This bill would allow for the use of video-conferencing for
incarcerated parents to participate in dependency proceedings
Pursuant to Welfare and Institutions Code Section 300(g),
children of incarcerated parents may fall within the juvenile
court's jurisdiction if a parent cannot arrange for the child's
care. The courts have interpreted "incarcerated" in Section 300
as meaning "jailed," which would include a parent who has been
arrested and charged, but not yet convicted. (See Edgar O. v.
Superior Court of Los Angeles County, (2000) 84 Cal.App.4th 13.)
A significant number of the children of incarcerated parents
become dependents of the juvenile court, and are placed in
foster care because parents do not have friends or relatives who
can care for their children.
Once a child is involved in dependency proceedings in the
juvenile court, there is a strict process and timeframe
prescribed by federal and state law, with the ultimate goal to
establish a permanent home for the child. The state must
petition to terminate parental rights of any child over age six
who has been in foster care 15 of the last 18 months (or 12
months for younger children), unless a relative is caring for
the child or termination would not be in the best interests of
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the child. (Wel. & Inst. Code Secs. 361.5, 366.26; Adoption and
Safe Families Act (ASFA) (P.L. 105-89).) Penal Code Section
2625 expressly gives incarcerated parents the right to be
present at a court hearing involving the termination of parental
rights. However, as noted by the author, there are a number of
barriers that may prevent an incarcerated parent from choosing
to physically attend a hearing.
This bill would allow for the use of video or teleconference
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.
Specifically, this bill would, at the court's discretion, allow
for participation via video or teleconferencing, subject to
availability of that technology, and if the participation
otherwise complies with the law. A prisoner would have to waive
his or her right to physical presence at the hearing. However,
the bill states that because of the significance of dependency
court proceedings for parental rights and children's long-term
care, physical attendance by the parent at the hearings is
preferred to participation by video or teleconference.
Further, this bill 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.
Once the appeals timeframe or process has expired, termination
of parental rights is irreversible, and completely severs a
parent's legal rights and relationship with his or her child.
As noted in a recent report by the National Conference of State
Legislatures, "[a]lthough 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
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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." (Children of Incarcerated Parents, p. 1,
Steve Christian, National Conference of State Legislatures,
March 2009)(footnote omitted), available at
http://www.ncsl.org/documents/cyf/childrenofincarceratedparents.p
df.)
This bill would arguably advance the goals articulated above by
providing incarcerated parents with more options for meaningful
participation in dependency proceedings involving their children
and those where their parental rights are at stake.
3. Suggested Amendment
The purpose of this bill is to remove barriers for incarcerated
parents to participation in dependency hearings in order to
promote family reunification and to decrease the number of
children in the child welfare system. It is important to note
that this bill does not authorize the use of video or
teleconference as a substitute to replace in-person family
visits with the prisoner. This bill also emphasizes that
physical attendance at hearings is preferred to participation by
video or teleconferencing. Thus, this bill is not intended to
erode the right of incarcerated parents to participate in
dependency hearings in person or create a precedent where
videoconferencing is the standard form of participation.
During the Senate Public Safety Committee's hearing on this
bill, several committee members requested an amendment
clarifying that this bill would not limit a parent's rights to
physically attend dependency hearings. Committee staff notes
that such a clarification would be consistent with both the
bill's goals and current law. The author agreed to make this
clarifying amendment, which would be as follows:
On page 5, line 25, after the period, insert:
"(i) Nothing in this bill shall be construed to limit a
prisoner's right to physically attend a dependency hearing
described in this section."
On page 5, line 27 strike "(i)" and insert "(j)"
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Support : California Public Defenders Association; County
Welfare Directors Association; Family Law Section of the State
Bar; SEIU Local 1000; Taxpayers for Improving Public Safety
Opposition : None Known
HISTORY
Source : Los Angeles Dependency Lawyers; Friends Outside
Related Pending Legislation : None Known
Prior Legislation : None Known
Prior Vote : Senate Public Safety Committee (Ayes 7, Noes 0)
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