BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 2813 Hearing Date: June 14, 2016
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|Author: |Bloom |
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|Version: |June 1, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|AA |
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Subject: Juvenile Offenders: Dual-Status Minors
HISTORY
Source: Youth Law Center
Prior Legislation:AB 388 (Chesbro), Chapter 760, Statutes of
2014
Support: Aspiranet; Advokids; Alameda County Office of
Education; California Alliance for Youth and Community
Justice; California Catholic Conference; California
Coalition for Youth; Children Now; Commonweal The
Juvenile Justice Program; Ella Baker Center for Human
Rights; John Burton Foundation; Lawyers' Committee for
Civil Rights of the San Francisco Bay Area; National
Association of Social Workers, California Chapter;
National Center for Youth Law; Prison Law Office;
Public Counsel; W. Haywood Burns Institute
Opposition:None Known
Assembly Floor Vote: 77 - 0
PURPOSE
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The purpose of this bill is to revise the conditions relevant to
continuing the detention of a minor who has been taken into
custody, by 1) deleting considerations relating to whether the
minor needs parental control, is destitute, or lives in an unfit
place, as specified; 2) providing that the decision to retain
custody over a dependent minor may not be based on that status,
a determination that the minor's current placement is contrary
to their welfare, or the inability of child welfare services to
provide a placement for the minor, as specified; 3) require
probation to immediately release a dependent child to child
welfare services or their foster parent or caregiver unless
certain conditions relating to safety, risk of flight or
violation of a court order are present, as specified; and 4)
provide that these provisions do not limit the authority of
probation to refer a minor to child welfare services, as
specified.
Current law requires probation to immediately release a minor
who has been taken into temporary custody to the custody of his
or her parent, legal guardian, or responsible relative unless it
can be demonstrated upon the evidence before the court that
continuance in the home is contrary to the minor's welfare and
one or more of the following conditions exist:
1) The minor is in need of proper and effective parental
care or control and has no parent, legal guardian, or
responsible relative; or has no parent, legal guardian, or
responsible relative willing to exercise or capable of
exercising that care or control; or has no parent, legal
guardian, or responsible relative actually exercising that
care or control.
2) The minor is destitute or is not provided with the
necessities of life or is not provided with a home or
suitable place of abode.
3) The minor is provided with a home which is an unfit
place for him or her by reason of neglect, cruelty,
depravity or physical abuse by either of his or her
parents, or by his or her legal guardian or other person in
whose custody or care he or she is entrusted.
4) Continued detention of the minor is a matter of
immediate and urgent necessity for the protection of the
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minor or reasonable necessity for the protection of the
person or property of another.
5) The minor is likely to flee the jurisdiction of the
court.
6) The minor has violated an order of the juvenile court.
7) The minor is physically dangerous to the public because
of a mental or physical deficiency, disorder or
abnormality. (Welfare and Institutions Code (WIC) § 628.)
This bill would delete conditions (1) through (3) above.
This bill additionally would provide that a "probation officer's
decision to detain a minor who is currently a dependent of the
juvenile court pursuant to Section 300 or the subject of a
petition to declare him or her a dependent of the juvenile court
pursuant to Section 300 and who has been removed from the
custody of his or her parent or guardian by the juvenile court
shall not be based on any of the following:
(A) The minor's status as a dependent of the juvenile court
or as the subject of a petition to declare him or her a
dependent of the juvenile court.
(B) A determination that continuance in the minor's current
placement is contrary to the minor's welfare.
(C) The child welfare services department's inability to
provide a placement for the minor."
This bill would require the probation officer to immediately
release a minor who is a dependent ward of the court, or subject
to a dependency petition to the custody of the child welfare
services department or his or her current foster parent or other
caregiver unless the probation officer determines that one or
more of the conditions described above (4-7) exist.
This bill would provide that this section does not limit a
probation officer's authority to refer a minor to child welfare
services.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
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.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
population, the state must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
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Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1.Stated Need for This Bill
The author states:
The problem this bill seeks to address is the
unnecessary and unfair over-detention of foster youth
in juvenile halls. Some group homes and residential
facilities respond to minor misconduct by calling law
enforcement and these minors can then be arrested,
detained and have delinquency petitions filed against
them. Under existing law, minors are granted certain
protections from detention, and probation officers and
courts are required to release them to their parents
unless they are a danger to themselves or others;
foster youth do not have the same protection in
statute. In 2014, the legislature passed a bill (AB
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388) to address the over-detention of foster youth.
That bill made a variety of changes to existing law,
one of which was requiring that courts not use a
minor's status as a foster youth as a reason to detain
them. This was an important and helpful step, but what
was left unaddressed was the probation department's
decision to detain a foster youth, which not only
results in the initial detention of youth, but also
influences the court's decision to detain a youth.
This bill will address the unnecessary detention of
foster youth by addressing a probation officer's
initial decision to detain a minor. The bill will
require:
- Probation departments to take
immediate steps to notify child welfare
services or foster parents when a minor is
in custody and where they are being held
- Probation officers to release the
minor to the custody of child welfare
services or his or her current foster
parents or other caregiver unless it can be
demonstrated that continued detention of the
minor is a matter of immediate necessity for
the protection of the person or another.
The probation officer's decision to detain the minor
may not be based on their status as a dependent of the
court.
2.This Bill; Background
Supporters of this bill submit that previous legislation, AB 388
(Chesbro) (2014), addressed the over-detention of foster youth
at the detention hearing stage by requiring that the court's
decision to detain not be based on a youth's status as a
dependent. The bill did not apply to a probation officer's
initial decision to detain prior to the court hearing. This
bill, according to those who support the bill, will harmonize
the criteria for detention probation with those used by the
court at the detention hearing, ensuring that no foster youth is
held in a juvenile hall because they are a foster youth.
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Detention can negatively impact a young person's mental and
physical well-being, their education, and their employment
opportunities. Time spent in detention can increase a youth's
likelihood to recidivate and spend time in detention as an
adult.
As explained in the Assembly Human Services Committee's analysis
of this bill, the purpose of California's Child Welfare Services
(CWS) system is to provide for the protection and the health and
safety of children. Within this purpose, the desired outcome is
to reunite children with their biological parents, when
appropriate, to help preserve and strengthen families. If
reunification with the biological family is not appropriate,
children are placed in the best environment possible, whether
that is with a relative, through adoption, or with a guardian,
such as a nonrelated extended family member, as specified. In
the case of children who are at risk of abuse, neglect or
abandonment, county juvenile courts hold legal jurisdiction and
children are served by the CWS system through the appointment of
a social worker. Through this system, there are multiple stages
where the custody of the child or his or her placement are
evaluated, reviewed and determined by the judicial system, in
consultation with the child's social worker to help provide the
best possible services to the child.
At the time a child is identified as needing child welfare
services and is in the temporary custody of a social worker, the
social worker is required to identify whether there is a
relative or guardian to whom a child may be released, unless the
social worker believes that the child would be at risk of abuse,
neglect or abandonment if placed with that relative or guardian.
State law also lays out the conditions under which a court may
deem a child a dependent or ward of the court, including when
the parent has been incarcerated or institutionalized and is
unable to arrange for care for the child, such as placement with
a known relative or nonrelative extended family member. If the
child is deemed a dependent or ward of the court, the court may
maintain the child in his or her home, remove the child from the
home but with the goal of reunifying the child with his or her
family, or identify another form of permanent placement. Unless
the child is unable to be placed with the parent, the court is
required to give preference to a relative of the child in order
to preserve the child's association with his or her family.
Associated with the placement, the assigned social worker shall
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develop a case plan for the child, which outlines the placement
for the child, sets forth services necessary for the child, and
outlines the provision of reunification services, if necessary
and appropriate.
Dual-status youth - those youth involved in the juvenile justice
system and the child welfare system - are recognized as facing
greater challenges and adversity as they move into adulthood.
They often face challenges that youth involved in only one of
the systems or youth involved in neither of the systems face,
and their outcomes are often poorer and require greater supports
and services to address their needs, reduce recidivism and
foster rehabilitation. Legislation and authorized various pilot
projects have been enacted to address the needs of these youth,
but a comprehensive statewide approach to meet those needs and
help youth successfully transition to adulthood does not yet
exist.
Counties can adopt dual status protocols in order to allow for
better oversight and provision of services to youth who are
involved in both the child welfare and juvenile justice systems.
Dual status for children who are both wards of the court and
dependent children allow for better oversight and coordination
between the child welfare services and probation systems.
Counties that elect to participate in this voluntary program are
tasked with creating a dual status protocols to permit a youth
who meets specified criteria to be designated as both a
dependent child and a ward of the court simultaneously.
According to the Judicial Council website, 18 of California's 58
counties have elected to develop these protocols. Counties that
have elected to participate include: Los Angeles, San Diego,
Santa Clara, Riverside, and San Bernardino Counties; with these
large counties involved, most youth involved with both the
dependency and delinquency systems in California today live in
dual-status jurisdictions.
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