BILL ANALYSIS Ó AB 989 Page 1 Date of Hearing: April 14, 2015 Counsel: Sandra Uribe ASSEMBLY COMMITTEE ON PUBLIC SAFETY Bill Quirk, Chair AB 989 (Cooper) - As Amended April 8, 2015 As Proposed to be Amended in Committee REVISED SUMMARY: Authorizes the district attorney and probation department to access sealed juvenile records for additional limited purposes. Specifically, this bill: 1)Authorizes the prosecutor and the probation department to access a juvenile's sealed records for the limited purpose of determining whether the minor is ineligible for informal supervision. 2)States that if a new petition has been filed against the minor for a felony offense, the probation department can access the sealed records for the limited purpose of identifying the minor's previous court-ordered programs or placements, and in that event solely to determine the individual's eligibility or suitability for remedial programs or services. The information obtained pursuant to this subparagraph shall not be disseminated to other agencies or individuals, except as necessary to implement a referral to a remedial program or service, and shall not be used to support the imposition of penalties, detention, or other sanctions upon the minor. AB 989 Page 2 3)Authorizes the probation department to access sealed juvenile records for the limited purpose of meeting Federal Title IV-E compliance. 4)States that this access shall not be considered an unsealing of the records. EXISTING LAW: 1)Provides that, if a minor satisfactorily completes an informal program of supervision, probation as specified, or a term of probation for any offense other than a specified serious, sexual, or violent offense, then the court shall order sealed all records pertaining to that dismissed petition in the custody of the juvenile court, except that the prosecuting attorney and the probation department of any county shall have access to these records after they are sealed for the limited purpose of determining whether the minor is eligible for deferred entry of judgment. The court may access a file that has been sealed pursuant to this section for the limited purpose of verifying the prior jurisdictional status of a ward who is petitioning the court to resume its dependency or delinquency jurisdiction. This access shall not be deemed an unsealing of the record and shall not require notice to any other entity. (Welf. & Inst. Code, § 786.) 2)Provides that five years or more after the jurisdiction of the juvenile court has terminated over a person adjudged a ward of the court or after a minor appeared before a probation officer, or, in any case, at any time after the person has reached the age of 18, the person or county probation officer, with specified exceptions, may petition the juvenile court for sealing of the records, including arrest records, relating to the person's case, in the custody of the juvenile court, the probation officer, or any other agency or public official. (Welf. & Inst. Code, § 781, subd. (a).) 3)States that once the court has ordered the person's records sealed, the proceedings in the case shall be deemed never to have occurred, and the person may reply accordingly to any inquiry about the events. (Welf. & Inst. Code, § 781, subd. AB 989 Page 3 (a).) 4)Permits the court to access a file that has been sealed for the limited purpose of verifying the prior jurisdictional status of the ward who is petitioning the court to resume its jurisdiction, as specified. This access is not to be deemed an unsealing of the records. (Welf. & Inst. Code, § 781, subd. (e).) 5)Allows a judge of the juvenile court in which a petition was filed to dismiss the petition, or to set aside the findings and dismiss the petition, if the court finds that the interests of justice and the welfare of the person who is the subject of the petition require that dismissal, or if it finds that he or she is not in need of treatment or rehabilitation. The court has jurisdiction to order dismissal or setting aside of the findings and dismissal regardless of whether the person who is the subject of the petition is, at the time of the order, a ward or dependent child of the court. (Welf. & Inst. Code, § 782.) 6)Allows the probation officer to destroy all records and papers in the proceedings concerning a minor after five years from the date on which the jurisdiction of the juvenile court over the minor is terminated. (Welf. & Inst. Code, § 826.) 7)States that any person who was under the age of 18 when he or she was arrested for a misdemeanor may petition the court in which the proceedings occurred or, if there were no court proceedings, the court in whose jurisdiction the arrest occurred, for an order sealing the records in the case, including any records of arrest and detention, in certain circumstances. (Pen. Code, § 851.7.) 8)Provides that a person who was under the age of 18 at the time of commission of a misdemeanor and is eligible for, or has previously received expungement relief, may petition the court for an order sealing the record of conviction and other official records in the case, including arrest records and records relating to other offenses charged in the accusatory pleading, whether the defendant was acquitted, or the charges dismissed. Thereafter the conviction, arrest, or other AB 989 Page 4 proceeding shall be deemed not to have occurred, and the petitioner may answer accordingly any question relating to their occurrence. (Pen. Code, § 1203.45, subd. (a).) FISCAL EFFECT: Unknown COMMENTS: 1)Author's Statement: According to the author, "In 2014, SB 1038 (Leno) regarding juvenile records sealing was signed into law. The bill provided for the automatic dismissal of juvenile petitions and sealing of records in cases where a juvenile offender successfully completes probation. The intent was to provide incentives for youth to successfully complete probation and foster employment, housing, and education opportunities by setting forth a process to have juvenile records sealed. "Upon implementation there have been varying legal opinions as to whether probation records such as program referrals and risk/needs assessments are considered part of the court record and would therefore be required to be sealed under the provisions of SB 1038. This inhibits the ability of probation to access their internal records should a minor, who has had their record sealed, come back into the custody of the juvenile court and probation department. "Therefore, there are cases when a youth comes back into the custody of the juvenile court and probation is unable to view their previous program referrals and risk/needs assessments to make the most appropriate determination on getting them connected to services. Further, it is important that probation be able to access records on a limited basis for the purposes of determining AB 12 extended foster care eligibility, eligibility for informal probation, and Federal Title IV-E purposes. In order to achieve the best outcomes for these minors, it is important that probation have access to this information to make the most effective case plan determinations for the minor's treatment. "AB 989 would continue the practice and original intent of SB 1038 to ensure that minors' records are automatically sealed AB 989 Page 5 upon successful completion and would clarify that in cases where a juvenile record has been sealed pursuant to Welfare & Institutions Code 786, if a youth subsequently comes back into the custody of the juvenile court, probation may access limited information as it pertains to determining AB 12 extended foster care eligibility, informal probation eligibility, Federal Title IV-E purposes, previous risk/needs assessments, and prior program and service referrals in order to most appropriately develop a case plan to address the treatment needs of the minor." 2)Sealing and Dismissals of Juvenile Records: Juvenile court records generally must be destroyed when the person of record reaches the age of 38 unless good cause is shown for maintaining those records. (Welf. & Inst. Code, § 826.) The person of record also may petition to destroy records retained by agencies other than the court. (Welf. & Inst. Code, § 826, subd. (b).) The request must be granted unless good cause is shown for retention of the records. (Welf. & Inst. Code, § 826.) When records are destroyed pursuant to the above provision, the proceedings "shall be deemed never to have occurred, and the person may reply accordingly to an inquiry." (Welf. & Inst. Code, § 826, subd. (a).) Courts have held that the phrase "never to have occurred" means that the juvenile proceeding is deemed not to have existed. (Parmett v. Superior Court (Christal B.) (1989) 212 Cal.App.3d 1261, at 1267.) Minors adjudicated delinquent in juvenile court proceedings may petition the court to have their records sealed unless they were found to have committed certain serious offenses. (Welf. & Inst. Code, § 781.) To seal a juvenile court record, either the minor or the probation department must petition the court. (Ibid.) Juvenile court jurisdiction must have lapsed five years previously, or the person must be at least 18 years old. (Welf. & Inst. Code, § 781, subd. (a).) The records are not sealed if the person of record has been convicted of a felony or a misdemeanor involving moral turpitude. (Ibid.) No offenses listed in Welfare and Institutions Code section 707, subdivision (b) may be sealed if the juvenile was 14 years or older at the time of the offense. Additionally, there can be no pending civil litigation involving the incident. AB 989 Page 6 Last year SB 1038 (Leno), Chapter 249, Statutes of 2014, enacted another process for automatic juvenile record sealing (i.e. without a petition from the minor) in cases involving satisfactorily-completed informal supervision or probation, except in cases involving serious offenses, namely Welfare and Institutions Code section 707, subdivision (b) offenses. (Welf. & Inst. Code, § 786.) When the record is sealed, the arrest in the case is deemed never to have occurred. (Ibid.) The court must order all records in its custody pertaining to the petition sealed. However, the prosecuting attorney and the probation department can access these records after they are sealed for the limited purpose of determining whether the minor is eligible for deferred entry of judgment. Also, the court may access the sealed file for the limited purpose of verifying the prior jurisdictional status of a ward who is petitioning the court to resume its jurisdiction. (Ibid.) This bill seeks to permit the probation department and district attorney to view the sealed records for several other limited purposes. First, the prosecutor and probation department would be able to access the sealed records to determine whether minor is ineligible for informal supervision. Second, the probation department would be able to access the sealed records to comply with the requirements of federal Title IV-E, which enables a local probation department to obtain federal funds from the federal foster care program. Finally, the probation department would be able to access the sealed records for the purposes of determining a minor's prior program referrals and risk-needs assessments. As to this final purpose, it seems beneficial for a probation department to be able to verify what programs have been tried successfully and unsuccessfully. However, should the bill include a limitation preventing a probation department from using the information to impose detention or other sanctions on the minor who has successfully had his or her record sealed? 3)Title IV-E: The largest federal funding stream for child welfare activities is Title IV-E of the Social Security Act. It comprises the Foster Care and Adoption Assistance programs, AB 989 Page 7 which are open-ended entitlements (the state receives a certain level of reimbursement from the federal government for every eligible claim submitted), and the Chafee Foster Care Independence Program, which is a capped entitlement (the state is entitled to get reimbursed for every single claim it submits to the federal government, up to a certain level, or cap). "Funds are available for monthly maintenance payments for the daily care and supervision of eligible children; administrative costs to manage the program; training of staff and foster care providers; recruitment of foster parents and costs related to the design, implementation and operation of a state-wide data collection system." ( http://www.acf.hhs.gov/programs/cb/resource/title-ive-foster-c are .) 4)Informal Supervision: The juvenile court can order either pre-petition or post-petition informal probation, also known as diversion. (Welf. & Inst. Code, §§ 654, 654.2.) Welfare and Institutions Code section 654.3 lists the eligibility criteria for both of these forms of diversion. Some of the factors to be considered are the type of offense committed, whether the offense occurred on school grounds, involved gang activity, and whether more than $1000 in victim restitution would be owed. (Welf. & Inst. Code, § 654.3.) If the probation department concludes that the minor is within the juvenile court's jurisdiction or likely soon will be, the probation officer can delineate a specific program of supervision for the minor for up to six months to try to adjust the situation that brings the minor within the juvenile court's jurisdiction. (Welf. & Inst. Code, § 654; In re Adam R. (1997) 57 Cal.App.4th 348.) This is known as pre-petition informal supervision. The underlying purpose of informal supervision is to avoid a true finding on criminal culpability, which would result in a criminal record for the minor. (In re Abdirahman S. (1997) 58 Cal.App.4th 963, 968.) The discretion to initially determine whether to institute informal supervision against the minor rests with the probation officer and cannot be delegated to the prosecution. (Charles S. v. Superior Court (1982) 32 Cal.3d 741, 746.) AB 989 Page 8 If the probation officer determines informal supervision is not appropriate, the juvenile court should conduct a new hearing on the minor's suitability for post-petition informal supervision and shall exercise its independent discretion in making its decision. (Welf. & Inst. Code, § 654.2; In re Armondo A. (1992) 3 Cal.App.4th 1185, 1189-90.) With Welfare and Institutions Code section 654.2m the Legislature intended to further address delinquency at its inception within a less structured program even after a delinquency petition is filed. The statute created a new power in the juvenile courts by allowing them to order informal supervision after a petition had been filed. This power is in addition to the probation officer's already existing pre-petition discretion. (Derick B. v. Superior Court (2009) 180 Cal.App. 4th 295, 302.) The court cannot require a minor to admit the truth of the petition before granting informal supervision. (In re Ricky J. (2005) 128 Cal.App.4th 783.) When ordering informal supervision, the juvenile court should not even make a true finding on the allegations in the petition. (In re Omar R. (2003) 105 Cal.App.4th 1434, 1437-1438.) Since informal supervision pursuant to Welfare and Institutions Code section 654.2 is available pre-adjudication only, it is not a viable alternative at a dispositional hearing. (In re Abdirahman S. (1997) 58 Cal.App.4th 963, 968.) 5)Argument in Support: The Chief Probation Officers of California, the sponsor of this bill, state, "By way of background, in 2014, SB 1038 (Leno) regarding juvenile records sealing was signed into law. The bill provides for the automatic dismissal of juvenile petitions and sealing of records in cases where a juvenile offender successfully completes probation. The intent was to provide incentives for youth to successfully complete probation and foster employment, housing, and education opportunities by setting forth a process to have juvenile records sealed. "Upon implementation there have been varying legal opinions as to whether probation records, such as program referrals and risk/needs assessments are considered part of the court record and would therefore be required to be sealed under the provisions of SB 1038. This inhibits the ability of probation AB 989 Page 9 to access their internal records should a minor, who has had their record sealed, come back to the custody of the juvenile court and probation department. "Therefore, there are cases when a youth comes back into the custody of the juvenile court and probation is unable to view their previous program referrals and risk/needs assessments to make the most appropriate determination on getting them connected to services. Further, it is important that probation be able to access records on a limited basis for the purpose of determining AB 12 extended foster care eligibility, eligibility for informal probation, and for Federal Title IV-E purposes. In order to achieve the best outcomes for these minors, it is important that probation have limited access to this information, when a minor comes back into our care for a subsequent violation, to make the most effective case plan determinations for the minor's treatment." 6)Argument in Opposition: According to Legal Services for Prisoners with Children, "California's confidentiality laws are intended to protect children from present and future adverse consequences and unnecessary emotional harm. Juvenile courts are intended to have exclusive authority in determining whether a juvenile record is to be shared. Under current law, entities must petition the court to obtain someone's confidential juvenile records. This process gives the defending party an opportunity to contest the sharing of information that may be detrimental to his or her rehabilitation and best interests. "AB 989 would add a new subsection (b)(3) to Welfare and Institutions Code Section 786 to grant probation departments access to sealed juvenile records, for the limited purpose of determining program referrals. This proposal is unnecessary because district attorneys already make informed decisions to refer young defendants to programs, regardless of probation records. District attorneys already have access to sealed juvenile records to decide eligibility for deferred entry of judgment. Additionally, we are concerned that it will be difficult to limit access to this stated 'limited purpose,' and difficult to know whether access was limited in this fashion or whether probation officers used this information AB 989 Page 10 for other purposes." 7)Related Legislation: AB 666 (Stone) requires records in the custody of law enforcement agencies, the probation department, or any other public agency having records pertaining to the case, to also be sealed, in a case where a court has ordered a juvenile's records to be sealed, as specified. AB 666 is pending hearing in this committee today. 8)Prior Legislation: SB 1038 (Leno), Chapter 249, Statutes of 2014, provides for the automatic dismissal of juvenile petitions and sealing of records when a juvenile offender successfully completes probation. REGISTERED SUPPORT / OPPOSITION: Support Chief Probation Officers of California (Sponsor) American Federation of State, County and Municipal Employees California District Attorneys Association Fraternal Order of Police, N. California Probation Lodge 19 Los Angeles County Probation Officers Union Riverside Sheriffs' Association San Joaquin Probation Officers Association San Mateo County Probation and Detention Association Santa Clara County Probation Peace Officers' Union SEIU Local 721 State Coalition of Probation Organizations Ventura County Professional Peace Officers' Association Opposition Legal Services for Prisoners with Children Analysis Prepared by: Sandy Uribe / PUB. S. / (916) 319-3744 AB 989 Page 11