BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 388 (Chesbro)
As Amended June 4, 2014
Hearing date: June 24, 2014
Health and Safety; Welfare and Institutions Codes
AA:mc
JUVENILE JUSTICE:
DETENTION AND OTHER SANCTIONS FOR DEPENDENCY WARDS
HISTORY
Source: Children's Rights Project at Public Counsel; Children's
Advocacy Institute
Prior Legislation: None
Support: Children's Law Center of California; Children Now; John
Burton Foundation for Children Without Homes; East Bay
Children's Law Offices
Opposition:None known
Assembly Floor Vote: N/A
KEY ISSUE
SHOULD THE LAW BE TIGHTENED TO ENSURE THAT DEPENDENT WARDS OF THE
COURT ARE NOT SUBJECT TO DETENTION OR OTHER SANCTIONS BECAUSE OF OR
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IN PART DUE TO THEIR STATUS AS DEPENDENT WARDS OF THE COURT?
PURPOSE
The purpose of this bill with respect to juvenile justice is to
ensure that dependent wards of the juvenile court are not
unnecessarily subject to detention or other sanctions because of
that status, by 1) providing additional specified protocols
between probation and child welfare services concerning minors
who are subject to both delinquency and dependency proceedings,
as specified; 2) taking into consideration the circumstances of
conduct that occurs in a group home in determining whether
dependency or delinquency status would best serve the interests
of the minor and society, as specified; 3) providing that
detention decisions shall not be based on dependency status or
placement issues, as specified; 4) requiring that social
services be ordered to ensure foster parents or other caregivers
for a dependent ward who is ordered released take physical
custody of the minor, or ensure the minor is placed
appropriately, as specified; 5) providing that if a minor is a
dependent ward of the court, the court's decision to detain
shall not be based on the minor's status as a dependent of the
court or the child welfare services department's inability to
provide a placement for the minor; 6) providing that a decision
to detain a child cannot be based on status as a dependent ward
or the inability of welfare services to provide a placement for
the minor; 7) providing that the court's decision to detain a
minor who is a dependent ward of the court shall not be based on
a finding that continuance in the minor's current placement is
contrary to the minor's welfare, and if it is, require the court
to order the child welfare services department to place the
minor into another licensed or approved placement; and 8)
requiring the court to waive a restitution fine of a dependent
minor for conduct occurring under the supervision of a foster
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home, group home, or other licensed facility that provides
residential care for minors, and additionally provide that if
the victim is a group home or licensed residential facility in
which the minor was placed, or an employee the facility,
restitution shall be limited to out-of-pocket expenses that are
not covered by insurance and are paid by the facility or
employee. This bill additionally makes a number of changes
relating to group homes and licensed residential facilities
which provide placements for dependent children, as specified.
Current law requires county child welfare departments and county
probation departments to jointly develop a written protocol
regarding minors who appear to come within both dependency
jurisdiction, pursuant to Welfare and Institutions Code ("WIC")
section 300 et seq., and delinquency jurisdiction, pursuant to
WIC 600 et seq. (WIC 241.1)
Current law requires the county welfare and county probation
departments, pursuant to the joint protocol, to make a
recommendation to the court regarding which initial status of a
minor who appears to come within both dependency and delinquency
jurisdiction would best serve the interests of the minor and the
protection of society. (WIC 241.1)
This bill would require that existing joint protocols developed
between county child welfare and probation departments regarding
cross over status youth to do the following:
" Require immediate notification of the child welfare
service department and the minor's dependency attorney when
a dependent child is referred to probation;
" Establish procedures for the release to and placement by
the child welfare services department pending resolution of
the determination of status;
" Establish timelines for dependents in secure custody to
ensure speedy resolution to the determination of status;
" Consider whether the alleged conduct was within the
scope of behaviors to be managed and treated by the foster
home or facility, as identified in specified care plans for
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the minor or facility;
" Establish nondiscrimination provisions to ensure that
dependents are provided with any option that would
otherwise be available to a non-dependent minor.
This bill would provide that if the alleged conduct that appears
to bring the dependent minor within the delinquency jurisdiction
occurs under the supervision of a foster home, group home, or
other licensed facility that provides residential care for
minors, the county probation department and the child welfare
services department shall consider whether the alleged conduct
was in the scope of behaviors to be managed or treated by the
foster home or facility, as identified in the minors case plan,
needs and services plan, placement agreement, facility plan of
operation, or facility emergency intervention plan, in
determining which status will serve the best interests of the
minor and the protection of society.
Current law generally provides for the temporary custody and
detention of minors in specified circumstances, and provides for
the court to make its order releasing the minor from custody
after hearing relevant evidence, as specified. (WIC § 635.)
This bill would provide that if a minor is a dependent ward of
the court, the court's decision to detain shall not be based on
the minor's status as a dependent of the court or the child
welfare services department's inability to provide a placement
for the minor.
This bill additionally would provide that if the court orders
release of a minor who is a dependent ward of the court, the
court shall order the child welfare services department either
to ensure that the minor's current foster parent or other
caregiver takes physical custody of the minor or to take
physical custody of the minor and place the minor in a licensed
or approved placement.
Current law provides that if "the probation officer has reason
to believe that the minor is at-risk of entering foster care
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placement as defined by Section 11402, then the probation
officer shall submit a written report to the court containing
all of the following: the reasons why the minor has been removed
from the parent's custody; any prior referrals for abuse or
neglect of the minor or any prior filings regarding the minor
pursuant to Section 300; the need, if any, for continued
detention; the available services that could facilitate the
return of the minor to the custody of the minor's parents or
guardians; and whether there are any relatives who are able and
willing to provide effective care and control over the minor."
(WIC § 635.)
This bill would make technical drafting revisions to this
provision.
Current law generally provides the court with authority to make
and order in certain circumstances that a minor be detained in
the juvenile hall or other suitable place designated by the
juvenile court for a period not to exceed 15 judicial days, as
specified. (WIC § 636.)
This bill would provide that if a minor is a dependent ward of
the court, the court's decision to detain shall not be based on
the minor's status as a dependent of the court or the child
welfare services department's inability to provide a placement
for the minor.
Current law generally provides that before detaining the minor,
the court shall determine whether continuance in the home is
contrary to the minor's welfare and whether there are available
services that would prevent the need for further detention. The
court shall make that determination on a case-by-case basis and
shall make reference to the documentation provided by the
probation officer or other evidence relied upon in reaching its
decision. (WIC § 636(d).)
This bill would provide that for a minor who is a dependent ward
of the court, the court's decision to detain the minor shall not
be based on a finding that continuance in the minor's current
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placement is contrary to the minor's welfare. If the court
determines that continuance in the minor's current placement is
contrary to the minor's welfare, the court shall order the child
welfare services department to place the minor in another
licensed or approved placement.
Current law generally provides for victim restitution and a
victim restitution fine from minors found to have committed a
crime by the juvenile court. (WIC § 730.6.)
This bill provide that a court shall waive a restitution fine of
a dependent minor who is ordered to pay restitution as a result
of conduct which appears to bring the dependent minor within the
delinquency jurisdiction and occurs under the supervision of a
foster home, group home, or other licensed facility that
provides residential care for minors. Additionally, this bill
would provide that if the victim is a group home or licensed
residential facility in which the minor was placed, or an
employee the facility, restitution shall be limited to
out-of-pocket expenses that are not covered by insurance and are
paid by the facility or employee.
Current law generally provides for the licensure and regulation
of community care facilities, including group homes, by the
California Department of Social Services ("CDSS") and requires
that licensed facilities be subject to unannounced inspections
under specified circumstances. (Health and Safety Code ("HSC" §
1500 et seq, and 1534.)
This bill would require CDSS to conduct an unannounced visit to
any group home that over a six month period has an average of
more than one call per month to law enforcement from facility
staff alleging specific crimes by residents, as specified.
This bill would require that licensing reports of unannounced
inspections for this purpose shall be provided to the division
of CDSS responsible for determining and auditing rate
classification levels and to any other public agency that has
certified the facilities program, or components of the program.
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This bill would require CDSS to publish and make available the
following information regarding community care facilities
providing residential care to minors:
The number of licensing complaints, type of complaint,
outcomes of complaints including citations, fines,
exclusion orders, license suspensions, revocations and
surrenders;
The number of law enforcement contacts made by the
facility staff or residents, the type of incidents, whether
staff, residents or both were involved, the gender, race,
ethnicity and age of residents involved, and the outcomes,
including arrests, removals of residents from placement and
termination or suspension of staff.
This bill would require facilities to report to CDSS Community
Care Licensing Division upon the occurrence of any incident in
which a resident of the facility has contact with law
enforcement, and requires specified follow-up reports to be
provided quarterly.
This bill would require the Department of Health Care Services
("CDSS") to review its certification of a group home RCL 13 or
14 upon receipt of notification from CDSS of any adverse
licensing action taken during an unannounced visit conducted
pursuant to this bill.
This bill would require CDSS to consult with specified
governmental agencies and other stakeholders to develop
additional performance standards and outcome measures that
require group homes to implement programs and services to
minimize law enforcement contacts and delinquency petition
filings against dependent minors, as specified.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
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relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
2013.
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The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated May 15, 2014, the state
reported that as of May 14, 2014, 116,428 inmates were housed in
the State's 34 adult institutions, which amounts to 140.8% of
design bed capacity, and 8,650 inmates were housed in
out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
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remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Background: History of this Bill
This bill was a gut and amend in the Senate; it passed the
Assembly as a bill relating to the community colleges, and on
April 29th was amended into the subject matter generally
reflected in the bill now before this Committee. The bill was
heard in this form on June 10, 2014 by the Senate Human Services
Committee, where it passed 4-0.
2. Purpose of the Bill
As explained in the analysis prepared by the Senate Human
Services Committee:
According to the author, older children and teens who
are in foster care due to parental abuse or neglect
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are often placed in group homes and other residential
facilities, because of a shortage of foster homes for
older children, or because they have special needs or
mental health issues. The author states that group
homes are licensed to provide safe and supportive
care, and to address these children's traumatic
history and special needs.
The author additionally states that some group homes
are overly reliant on law enforcement to address
behavioral issues with youth leading to the youth's
arrest for minor incidents that would not trigger
justice system involvement for youth who live with
their own parents (e.g. fights between two youth,
yelling at staff, breaking or throwing objects). Once
arrested, the author states that many foster youth are
needlessly detained in juvenile halls and other locked
facilities.
3. Background: Delinquency and Dependency; Dual Jurisdiction;
Group Homes
Juvenile delinquency proceedings involve children under the age
of 18 alleged to have committed a delinquent act which would be
a crime if committed by an adult. The juvenile court may find a
minor to be a delinquent ward of the court and place a child
under the responsibility of the county probation department. The
juvenile court oversees multiple types of proceedings including
dependency and delinquency cases and status offenses (for
example, chronic truancy), and these courts make important
determinations regarding the safety, wellbeing and placement of
children found to be under court jurisdiction. The juvenile
court has authority in delinquency and dependency cases to take
a broad range of actions, including removing children from their
homes and establishing a placement order for children to reside
with relatives or in foster care; terminating parental rights,
requiring county child welfare or probation departments or other
agencies to provide a range of services such as family
reunification services, counseling and others.
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In delinquency cases, where the minor is found to have committed
a crime, the court may order children to be confined in locked
facilities, such as juvenile detention halls, camps, and the
Division of Juvenile Justice. When arresting a minor, local law
enforcement has significant discretion over whether to order the
youth to juvenile hall and refer the case to the county
probation department or release the minor and return her home.
If law enforcement brings a youth to a juvenile hall, probation
officials have discretion over how to process the case. A
probation officer may decide to close or transfer the case,
place the youth on informal probation or in a diversion program,
or file a petition for a court hearing. About one-half of the
cases referred to probation result in the filing of a petition
with the juvenile court for a hearing. Based on information
provided by the probation officer, the delinquency court
determines whether to make the juvenile a ward of the court and
determines the appropriate placement and treatment. Nearly 60
percent of juvenile delinquency court hearings result in the
juvenile being made a ward of the court, and the majority of
those are placed in home supervision under the probation
department. Most of the remaining youth are placed in a county
facility, such as juvenile hall or camp or are placed in foster
care or a group home. In 2012, CDSS reports there were 4,621
probation-supervised foster youth, with more than 1,200 of them
residing in Los Angeles County.
Some counties have established "dual jurisdiction" proceedings,
governed by WIC 241.1, which permit the development of joint
written protocols to determine which status will serve the best
interests of the minor and the protection of society. The
recommendations of both departments are presented to the
Juvenile Court with the petition that is filed on behalf of the
minor, and the court determines which status is appropriate for
the minor.
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4. Support
Children Now, which supports this bill, submits in part:
Children in the foster care system are especially
vulnerable to crossing over to the delinquency system
because they may act out due to past abuse, and
because their behavior is subject to closer scrutiny
than that of children in the general population. Some
group homes respond inappropriately to minor
misconduct such as fights among peers, threats or
conflict with group home staff, destruction of
property, etc. - by calling law enforcement, causing
children to be arrested and have delinquency petitions
filed against them. Once arrested, many foster youth
are needlessly detained in juvenile halls and other
locked facilities.
Foster children should not be unfairly and
disproportionately arrested, charged, and detained,
and pulled ever deeper into the criminal justice
system, due to typical teen misbehavior that would not
trigger such dire consequences for youth living at
home with parents.
WOULD THIS BILL STRENGTHEN THE ABILITY OF THE COURTS AND
PROBATION TO ENSURE THAT DEPENDENT WARDS OF THE JUVENILE COURT
ARE NOT SUBJECT TO DETENTION AND OTHER SANCTIONS UNFAIRLY?
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