BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 2410 (Fuller) 0
As Amended April 20, 1010
Hearing date: June 29, 2010
Penal Code
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LAW ENFORCEMENT AND SOCIAL SERVICE PROTOCOLS:
CHILDREN FOUND AT THE SCENE OF CONTROLLED SUBSTANCE CRIMES
HISTORY
Source: Author
Prior Legislation: SB 628 (Correa) 2008, held in Senate
Appropriations
SB 496 (Alpert), Ch. 75, Stats. 2003
Support: California Peace Officers' Association; California
Police Chiefs Association
Peace Officers Research Association of California;
Crime Victims United of California; California
Probation Parole and Correctional Association
Opposition:American Civil Liberties Union; Children's Law Center
of Los Angeles
Assembly Floor Vote: Ayes 71 - Noes 0
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KEY ISSUES
SHOULD LAW ENFORCEMENT AND SOCIAL SERVICE AGENCIES BE ENCOURAGED
TO DEVELOP AND IMPLEMENT POLICIES AND STANDARDS FOR RESPONDING
TO CRIME SCENES INVOLVING HALLUCINOGENS, METHAMPHETAMINE,
COCAINE, PHENCYCLIDINE (PCP) AND HEROIN WHERE A CHILD IS PRESENT
OR RESIDES?
(CONTINUED)
IS IT IN THE BEST INTERESTS OF CHILDREN IF LAW ENFORCEMENT AND CHILD
PROTECTIVE AGENCIES FOLLOW PROTOCOLS ENCOURAGING A DEPENDENCY
INVESTIGATION AND REMOVAL OF A CHILD FROM A DRUG CRIME SCENE IF AN
IMMEDIATE THREAT TO THE CHILD EXISTS?
PURPOSE
The purposes of this bill are 1) to expand a provision
encouraging law enforcement agencies to develop policies and
standards for responding to crime scenes involving narcotics to
include crime scenes involving methamphetamine, cocaine, PCP,
hallucinogens, and 2) to state that it is in the best interests
of children if law enforcement and child protective agencies
follow protocols encouraging a dependency investigation and
removal of a child from a drug crime scene if there is an
immediate threat to the health or safety of the child.
Existing law classifies controlled substances in five schedules
according to their danger and potential for abuse. Schedule I
controlled substances have the greatest restrictions and
penalties, including prohibiting the prescribing of a Schedule I
controlled substance. (Health & Saf. Code S 11054 through
11058.)
Existing law recognizes that exposing a child to the
manufacturing, trafficking, and use of narcotics is criminal
conduct and that a response coordinated by law enforcement and
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social services agencies is essential to the child's health and
welfare and encourages law enforcement and social services to
develop, adopt, and implement written policies and standards for
their response to narcotics crime scenes where a child is either
immediately present or where there is evidence that a child
lives. (Pen. Code 13879.80, subd. (a).)
Existing law states that the needs of children exposed to
narcotics crime scenes are best served by written policies
encouraging the arrest of an individual for child endangerment
where there is probable cause that an offence has been committed
and coordination with an appropriate investigation of that
child's welfare by child protective services. Protocols that
encourage dependency hearings, along with law enforcement
investigation, are in the best interests of the child. (Pen.
Code 13978.80, subd. (b).)
Existing law states that the use of the word "narcotics,"
unless otherwise specified, is defined as any drug listed in
Schedules I and II of the controlled substance schedules.
(Health & Saf. Code 11032.)
Existing law provides that when removal of a minor from his or
her home is determined by the juvenile court to be necessary,
reunification of the minor with his or her family shall be a
primary goal.
Minors under the care of the juvenile court who are in need of
protective services shall receive care, treatment and guidance
consistent with their best interest and the best interest of
the public.
Juvenile courts and other public agencies charged with
enforcing, interpreting, and administering the juvenile court
law shall consider the safety and protection of the public and
the best interests of the minor in all deliberations pursuant
to this chapter. (Welf. & Inst. Code 202.)
Existing law sets forth these basic grounds for making a minor a
ward of the court
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The child has suffered serious harm non-accidentally inflicted
by a parent or guardian, or there is a substantial risk of
such harm.
The child will suffer serious physical harm or illness because
of the failure of a parent or guardian to supervise or protect
the child, or there is a substantial risk of such harm.
There is willful or negligent failure to provide adequate
food, clothing or shelter.
Inability to care for the child because of a parent or
guardian's mental illness, developmental disability or
substance abuse.
The child is suffering serious emotional damage, or there is a
substantial risk thereof.
A child under the age of five has suffered serious abuse by a
parent, or anyone known to a parent, if the parent knew or
reasonably should have known of the abuse.
The parent of guardian caused the death of another child by
abuse or neglect.
The child has been left without support.
Physical custody of the child has been voluntarily surrendered
or the child has been freed for adoption.
The child has been subjected to acts of cruelty by a parent or
guardian, or by a member of the household, or the parent or
guardian knew or should have known the child was treated
cruelly.
The child's sibling has been abused or neglected and there is
substantial risk the child will be abused or neglected.
(Welf. & Inst. Code 300.)
Existing law states that the purpose of dependency law is to
provide for the maximum safety and protection of children who
are currently being abused, neglected, or exploited, and the
protection of children who are at risk of that harm. The focus
"shall be on the preservation of the family as well as the
safety, protection, and physical and emotional well-being of the
child." (Welf. & Inst. Code 302.2.)
Existing law authorizes a peace officer to take a minor into
temporary custody without a warrant and to deliver that minor to
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a probation officer where the officer reasonably believes the
minor is subject to abuse and neglect within the meaning of
Welfare and Institutions Code Section 300, which sets standards
for dependency. (Welf. & Inst. Code 305.)
Existing law provides that when a child has been removed from
his or her parents or guardian because of abuse or neglect and
taken into temporary custody, the following shall apply:
The social worker shall immediately investigate the
circumstances of the matter.
Ready, willing and willing relatives may seek placement of the
child pending the detention hearing.
The court shall examine the parents, guardian or other
individuals with relevant knowledge of the child at the
initial petition hearing.
The court shall order the parent to disclose to the social
worker the names and address of any maternal or paternal
relatives.
The social worker shall provide to the court an evaluation,
which shall include, among other things, information about the
child's siblings and the appropriateness of any relative
placement.
Within 30 days of the child being taken into custody, the
social worker shall seek to investigate all adult relatives of
the child who may have specified information about the child,
including the circumstances leading to dependency and
exploration of options for placement. (Welf. & Inst. Code
309.)
Existing law establishes the purpose of dependency law as the
provision of the maximum safety and protection for children who
are currently being abused, neglected, or exploited, and the
protection of children who are at risk of that harm. The
focus "shall be on the preservation of the family as well as the
safety, protection, and physical and emotional well-being of the
child." (Wel. & Inst. Code Sec. 302.2.)
This bill adds hallucinogens, methamphetamine, heroin and
cocaine to a statute that encourages law enforcement and social
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service agencies to develop, adopt, and implement written
policies and standards for their response to narcotics crime
scenes where a child is either immediately present or where
there is evidence that a child lives on the premises.
This bill states that protocols encouraging removal of a child
from a crime scene involving specified drugs is in the best
interests of the child where there is an immediate threat to the
child's health or safety.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house . .
. (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
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neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
adequate medical and mental health care.<1>
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<1> Three Judge Court Opinion and Order, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (August 4, 2009).
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The court stayed implementation of its January 12, 2010 ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. On Monday, June 14, 2010, The U.S. Supreme Court agreed
to hear the state's appeal in this case.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
Existing law encourages law enforcement and social
services agencies in California to develop written
policies and standards for their response to narcotics
crime scenes where a child is present. The
specification of narcotics excludes crime scenes
involving hallucinogens, methamphetamine, cocaine,
PCP, and heroin. This narcotics specification leaves a
loophole though which a parent or guardian could
potentially regain custody of a child even if the
parent or guardian has previously been convicted of
being under the influence of a hallucinogen such as
PCP.
In the local case of Angel Vidal Mendoza Sr., Mendoza
was able to regain custody of his son even though he
had been charged with being under the influence of PCP
and pled no contest to child endangerment charges.
This measure aims to expand the protections offered to
children from dangerous environments that involve
drugs, specifically hallucinogens, methamphetamine,
cocaine and heroin. By authorizing local authorities
to consider additional drugs in developing policies
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and standards for responding to narcotics crime scenes
where a child is present.
2. Background from SB 496 (Alpert) in 2003, the Bill that Enacted
the Section Amended by This Bill
The specific section amended by this bill was enacted in SB 496
(Alpert), Ch. 75, Stats. 2003. The analysis of SB 496 in 2003
included the following background describing the history and
development of programs to serve drug endangered children:
Many counties established Drug Endangered Children
(DEC) teams with funding provided by the state under
Penal Code 13875-13879.7. DEC programs are
multi-jurisdictional and are dependent upon the
relationship that exists between law enforcement and
Child Protective Service (CPS) agencies.
Law enforcement responds to narcotics crime scenes
where, out of necessity, they make decisions about
the health and welfare of children present. In most
counties, CPS workers do not act as "first
responders" to narcotics crime scenes where children
are discovered. Without DEC programs, communication
between law enforcement officers investigating
narcotics cases and social workers, where it occurs
at all, is often too late to assist in dependency
investigations. As a result, child endangerment
charges are often overlooked and a dependency
investigation never takes place.
DEC programs initiated in some California counties
have demonstrated the efficacy of forming teams of
prosecutors, social workers and narcotics detectives
to address the needs of children identified at
narcotics crime scenes. Child protective workers
responding to crime scenes have lifted the burden
from law enforcement of making dependency decisions.
In addition, the presence of social workers brings a
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heightened awareness and professional expertise of
the need to investigate child endangerment
allegations and usually results in forensic testing
of the children present at the scene.
3. Suggested Amendment to Coordinate Child Welfare Statutes in
the Penal and Welfare and Institutions Code
As noted in the letter of the Children's Law Center (Comment #
4), existing provisions of the Welfare and Institutions Code
concerning abused or neglected children who may be declared
dependent wards of the court set out comprehensive requirements
and procedures for such cases, some of which are compelled by
federal law. Section 309 and related sections of the Welfare
and Institutions Code set clear priorities for placing possibly
dependent children with relatives or parents. The dependency
statutes have evolved over decades to provide a balance between
the fundamental right to parent one's child and the duty of the
state to care for children.
Arguably, and provision in the Penal Code concerning children
who may be endangered by drug activity should be made consistent
with the more general and comprehensive provisions of the
dependency law. Confusion and protracted litigation could arise
where protocols for handling children found at the scene of drug
crimes conflict with dependency law. This is particularly true
if each jurisdiction is allowed to develop its own protocols.
It is suggested that the bill be amended to include a provision
stating that protocols developed pursuant to this bill shall
comply with and be consistent with the provisions of Chapter 2,
Articles 6 and 7 of Welfare and Institutions Code, beginning
with Section 300.
SHOULD THE BILL BE AMENDED TO PROVIDE THAT ANY PROTOCOL OR
PROCEDURE DRAFTED OR FOLLOWED PURSUANT TO THIS BILL SHALL BE
CONSISTENT WITH RELEVANT PROVISIONS OF THE JUVENILE DEPENDENCY
LAW, PARTICULARLY SECTIONS 300-324.5?
4. Argument in Opposition
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According to the Children's Law Center of Los Angeles:
The purpose of Penal Code 13879.80 is to encourages
cooperation between law enforcement and child welfare
agencies in responding to drug crime scenes at which
children are present. Pursuant to this statute, when
police find children at a home where they are
conducting a drug-related search and seizure, they
call upon county child welfare agency caseworkers to
assess the safety of the children and make
arrangements for their care if necessary.
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In these situations, as in all other cases, existing
law requires child welfare caseworkers to release
children to a parent or responsible relative, and not
to detain the child in foster unless there are no
other means to ensure the child's safety. (Welf. &
Inst. Code 309.) This is consistent with the
overall emphasis in the dependency laws on keeping
children safe with their parents or relatives whenever
possible, and only taking the extreme and traumatic
step of separating children from their homes and
families when there are no other reasonable means of
ensuring their safety. See, e.g., Welf. & Inst. Code
309, 319, 361.2, 361.3, 366.21.
AB 2410 is inconsistent with this overall statutory
scheme, and would carve out an arbitrary exception for
'crime scene' cases. Such an exception is
unnecessary, because existing law clearly provides for
removal of children from any situation in which their
health or safety cannot be ensured - and it is also
harmful, because it would lead to needless and
traumatic disruption of children's lives?
Thus, AB 2410 would encourage the hasty and needless
removal of children from their homes even where there
is no remaining safety risk in the home and there is a
responsible a parent or relative who could care for
the children."
5. Additional Background on Placement of Dependent
Children: Senate Human Services Analysis of AB 938
(Assembly Judiciary) -Ch. 261, Stats. 2009:
Placement of Children with Relatives, Compliance
with Federal Law
In 2009, the Legislature passed an amendment to Welfare and
Institutions Code Section 309. In large part, the bill was
enacted so as to comply with federal law creating presumptions
and preferences for the placement of foster children with
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relatives when removed from the home of a parent The Senate
Human Services Committee analysis of the bill stated:
According to the authors, when children are removed
from their parents because of abuse or neglect, they
are sometimes severed from their families and their
communities, even when relatives could step in and
care for them. Recognizing this and in response to
studies showing the benefits of having foster children
cared for by relatives, last year's federal Fostering
Connections Act requires that child welfare agencies
provide notice to all adult grandparents and other
relatives within 30 days of a child's removal from the
parents and placement in foster care. The authors
believe that California must implement this
requirement by January 1, 2010 or risk loss of
significant federal foster care funds. AB 938
implements this federal mandate.
SHOULD THE STATUTE THAT ENCOURAGES LAW ENFORCEMENT AND CHILD
PROTECTION AGENCIES TO DEVELOP PROTOCOLS TO RESPOND TO
"NARCOTICS" CRIME SCENES SPECIFICALLY REFER TO METHAMPHETAMINE,
COCAINE, HEROIN, PCP AND HALLUCINOGENS?
SHOULD THIS STATUTE SPECIFICALLY STATE THAT PROTOCOLS THAT
ENCOURAGE A DEPENDENCY INVESTIGATION AND REMOVAL OF A CHILD FROM
A DRUG CRIME SCENE ARE IN THE BEST INTEREST OF THE CHILD IF THE
CIRCUMSTANCES PRESENT AN IMMEDIATE THREAT TO CHILD'S HEALTH OR
SAFETY?
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