BILL ANALYSIS SB 962 Page 1 Date of Hearing: June 22, 2010 ASSEMBLY COMMITTEE ON JUDICIARY Mike Feuer, Chair SB 962 (Liu) - As Amended: June 17, 2010 PROPOSED CONSENT SENATE VOTE : 30-0 SUBJECT: PRISONERS: PARTICIPATION IN DEPENDENCY PROCEEDINGS KEY ISSUE : SHOULD VIDEOCONFERENCING OR TELECONFERENCING, IF ORDERED BY A COURT AND AVAILABLE, BE PROVIDED FOR PRISONERS TO PARTICIPATE IN CERTAIN DEPENDENCY COURT PROCEEDINGS FOR THEIR CHILDREN? FISCAL EFFECT : As currently in print this bill is keyed fiscal. SYNOPSIS This bill, sponsored by Friends Outside and Los Angeles Dependency Lawyers, allows 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. This bill also allows the California Department of Corrections and Rehabilitations (CDCR) to accept donated materials and services for a three-year pilot program to facilitate the participation of incarcerated parents in dependency court hearings regarding their children. This bill was approved by the Assembly Public Safety Committee on a vote of 7-0 on June 15, 2009. It is supported by, among others, the California Public Defenders Association, the County Welfare Directors Association, the Judicial Council and the Family Law Section of the State Bar. There is no known opposition. SUMMARY : Allows for the use of video or teleconference technology in order for prisoners to participate in judicial proceedings involving their parental rights or a dependency petition for their child. Specifically, this bill : 1)Provides that a prisoner who is a parent of a child involved SB 962 Page 2 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 in the proceeding, 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, provides that teleconferencing may be utilized to facilitate parental participation. 2)States 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. 3)Provides that the use of videoconference or teleconference to replace in-person family visits with prisoners is not authorized. 4)Provides 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 dependency 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. 5)Provides that nothing in this bill shall be construed to limit a prisoner's right to physically attend a specified dependency hearing. 6)Authorizes CDCR, until January 1, 2014, to accept donated materials and services for a three-year pilot project to facilitate the participation of incarcerated parents in dependency court hearings regarding their children. Requires that the donors make a report to the Legislature, within two years of the start of the pilot, about the program and provide any collected data. EXISTING LAW : 1)Authorizes the juvenile court to declare a child a dependent of the court if there is evidence that the child has suffered or is at risk of physical, sexual or emotional abuse, neglect SB 962 Page 3 or exploitation. (Welfare & Institutions Code Sections 300 and 300.2.) 2)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. (Penal Code Section 2625. Unless otherwise stated, all further statutory references are to that code.) 3)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.) 4)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. (Id.) COMMENTS : Over the past eight years the California Research Bureau (CRB) has issued a series of reports focusing on California law as it relates to the lives of incarcerated prisoners and their children. (See Charlene Wear Simmons, Children of Incarcerated Parents, CRB Note Vol. 7, No. 2, March 2000; Clare M. Nolan, Children of Arrested Parents: Strategies to Improve Their Safety and Well-Being, CRB 03-011, July 2003; M. Anne Powell, California State Prisoners With Children: Findings from the 1997 Survey of Inmates in State and Federal Correctional Facilities, 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 SB 962 Page 4 problems have become even more pressing as the state's prison population, particularly the female population, continues to increase dramatically. 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 allows for participation via video or teleconferencing in specified circumstances. This bill was approved by the Assembly Public Safety Committee on a vote of 7-0. In support of 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 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. . . . SB 962 Page 5 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 Use of Videoconferencing 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 the child. (Welfare & Institutions Code Sections 361.5, 366.2.) 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 allows 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 SB 962 Page 6 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. 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. Thus, this bill specifically states that it 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 rightly does not 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. Further, this bill provides that prisoners will 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 authorizes CDCR to conduct a three-year pilot project to facilitate the participation of incarcerated parents in dependency court hearings regarding their children, with donated materials and services, as specified. In order to ensure that the Legislature can determine the success of the program, the bill requires that the donor organizations make a report to the Legislature about the program and provide the collected data, within two years of the start of the pilot. REGISTERED SUPPORT / OPPOSITION : Support Los Angeles Dependency Lawyers (co-sponsor) Friends Outside (co-sponsor) California Public Defenders Association Children's Law Center of Los Angeles County Welfare Directors Association Family Law Section of the State Bar Judicial Council SB 962 Page 7 SEIU Local 1000 Taxpayers for Improving Public Safety Opposition None on file Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334