BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 352 (Dutton)
As Amended April 16, 2009
Hearing date: April 28, 2009
Health and Safety and Welfare and Institutions Codes
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JUVENILE JUSTICE :
PLACEMENT OF JUVENILE OFFENDERS IN COMMUNITY FACILITIES
HISTORY
Source: San Bernardino County
Prior Legislation: None
Support: San Bernardino County Sheriff's Department; San
Bernardino County District Attorney's Office; Riverside
County District Attorney's Office
Opposition:None known
KEY ISSUE
should a number of changes concerning sharing information about
delinquent wards of the juvenile court who are placed in licensed
community facilities, including gang affiliation, be made, as
specified?
PURPOSE
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The purpose of this bill is to make a number of changes
concerning sharing information about delinquent wards of the
juvenile court who are placed in licensed community facilities,
including gang affiliation, as specified.
Under current law , the purpose of juvenile court law "is to
provide for the protection and safety of the public and each
minor under the jurisdiction of the juvenile court and to
preserve and strengthen the minor's family ties whenever
possible, removing the minor from the custody of his or her
parents only when necessary for his or her welfare or for the
safety and protection of the public." (Welfare and Institutions
Code ("WIC") 202.)
Minors under the jurisdiction of the juvenile court
as a consequence of delinquent conduct shall, in
conformity with the interests of public safety and
protection, receive care, treatment, and guidance
that is consistent with their best interest, that
holds them accountable for their behavior, and that
is appropriate for their circumstances. This
guidance may include punishment that is consistent
with the rehabilitative objectives of this chapter.
(Id.)
Current law expressly defines the scope and nature of
"punishment" in the juvenile court:
As used in this chapter, "punishment" means the
imposition of sanctions. It shall not include a
court order to place a child in foster care as
defined by Section 727.3. Permissible sanctions may
include the following:
(1) Payment of a fine by the minor.
(2) Rendering of compulsory service
without compensation performed for the
benefit of the community by the minor.
(3) Limitations on the minor's
liberty imposed as a condition of probation
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or parole.
(4) Commitment of the minor to a
local detention or treatment facility, such
as a juvenile hall, camp, or ranch.
(5) Commitment of the minor to the
Department of the Youth Authority.
"Punishment," for the purposes of this chapter, does
not include retribution. (Id.)
Current law provides that when a minor is adjudged a delinquent
ward of the court, "the court may make any and all reasonable
orders for the care, supervision, custody, conduct, maintenance,
and support of the minor, . . . ." Current law generally
authorizes the juvenile court to place a minor as specified,
including in any of the following placements:
(1) The approved home of a relative, or the approved
home of a nonrelative, extended family member as
defined in Section 362.7. When a decision has been
made to place the minor in the home of a relative, the
court may authorize the relative to give legal consent
for the minor's medical, surgical, and dental care and
education as if the relative caretaker were the
custodial parent of the minor.
(2) A suitable licensed community care facility.
(3) With a foster family agency to be placed in a
suitable licensed foster family home or certified
family home which has been certified by the agency as
meeting licensing standards. (WIC 727.)
Under current law , the term "placement agency" includes a
probation department which is engaged in finding homes or other
places for placement for temporary or permanent care. (Health
and Safety Code 1536.1.)
Current law requires a placement agency to "notify the
appropriate licensing agency of any known or suspected incidents
which would jeopardize the health or safety of residents in a
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community care facility. Reportable incidents include, but are
not limited to, all of the following:
(1) Incidents of physical abuse.
(2) Any violation of personal rights.
(3) Any situation in which a facility is unclean,
unsafe, unsanitary, or in poor condition.
(4) Any situation in which a facility has
insufficient personnel or incompetent personnel on
duty.
(5) Any situation in which residents experience
mental or verbal abuse. (Health and Safety Code
1536.1 (f).)
This bill would revise this provision to include a specific
reference to sexual abuse.
This bill also would revise this provision to add the following
additional, specific "reportable incident." "A situation in
which residents are inadequately supervised."
This bill would make additional purely technical changes to this
section.
Current law authorizes the Department of Social Services (DSS),
which licenses the types of facilities that are the subject of
this bill, to provide all inspection reports given to the
facility by the department during the past year as a result of a
substantiated complaint regarding a violation of this chapter
relating to resident abuse and neglect, food, sanitation,
incidental medical care, and residential supervision to the
board members of the licensed facility, parents, legal
guardians, conservators, clients' rights advocates, or placement
agencies, as specified. (Health and Safety Code 1538.5.) For
group homes DSS may share these reports with the county where
the facility is located. In addition, group homes must maintain
copies of all of these inspection reports for the past three
years, as specified. (Id., subd. (a)(2) and (3).)
Current law further requires that these facilities transmit and
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retain records for, as specified, all substantiated reports to
the above-enumerated persons in the following cases, with
specified civil sanctions if they fail to do so:
(1) In the case of a substantiated complaint relating
to resident physical or sexual abuse, the facility
shall have three days from the date the facility
receives the licensing report from the state department
to comply.
(2) In any case in which a facility has received
three or more substantiated complaints relating to the
same violation during the past 12 months, the facility
shall have five days from the date the facility
receives the licensing report to comply. (Id., subds.
(b) (c) and (d).)
Current law requires licensed group homes to give the county a
copy of all incident reports prepared by the group home facility
and given to a placement agency in a county other than the county
in which the group home facility is located, that involved a
response by local law enforcement or emergency services
personnel, as specified. (Health and Safety Code 1538.5 (e).)
This bill would include "runaway incidents" in this provision.
Current law requires that, prior to transmitting copies of
incident reports to the county, the group home facility shall
redact the name of any child referenced in the incident reports,
and other identifying information regarding any child referenced
in the reports, and the identity and location of the placement
agency of any child referenced in the reports. (Id.)
This bill would delete from this provision the requirement that
the identity and location of the placement agency of any child
referenced in the reports be redacted.
This bill would make additional purely technical changes to this
section.
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Current law provides that no licensed community care facility
may receive a delinquent ward of the juvenile court until the
probation officer of the county in which the community care
facility is located has received written notice of the
placement, as specified, including the name of the ward, the
juvenile record of the ward, including any known prior offenses,
and the ward's county of residence, from the probation officer
of the county making the placement, or in the case of a ward in
the Division of Juvenile Justice, the parole officer in charge
of the case. (Health and Safety Code 1576.3 (a).)
This bill would revise this provision to include known gang
affiliation in the written notice of the placement.
This bill additionally would require the facility to maintain a
copy of this notice, as specified, and make additional technical
changes.
Current law requires the probation officer of a county making an
out-of-county placement of a delinquent ward of the juvenile
court to notify the probation officer of the county in which the
community care facility is located within 24 hours of receipt of
the ward by the licensed community care facility. If the ward
is received on a weekend or holiday, notification shall be made
by the end of the next business day. (Health and Safety Code
1567.3 (b).)
This bill would change this to require this notice occur at
least 24 hours prior to the ward being placed in the facility.
This bill would additionally require a probation officer of a
county making an out-of-county placement of a ward of the
juvenile court to also send, at that time, a copy of the
notification to the community care facility where the ward is
being placed. This bill would make an additional technical
amendment to this subdivision.
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Current law provides that any delinquent ward of the juvenile
court who is placed in a community care facility shall be placed
in a community care facility within his or her county of
residence, unless both of the following apply:
(1) He or she has identifiable needs requiring
specialized care that cannot be provided in a local
facility, or his or her needs dictate physical
separation from his or her family.
(2) The county of residence agrees to pay the
placement county the costs of providing services to
the minor, as specified. (Welfare and Institutions
Code 740 (a).)
Current law requires that, before the placement of a delinquent
minor in any community care facility outside the ward's county
of residence, the probation officer of the county making the
placement, or DJJ in the case of a ward in DJJ, shall send
written notice of the placement, including the name of the ward,
the juvenile record of the ward (including any known prior
offenses), and the ward's county of residence, to the probation
officer of the county in which the community care facility is
located. (WIC 740 (b).)
Current statute states "It is the intention of the Legislature,
in regard to this requirement, that the probation officer of the
county making the placement, (or DJJ) shall make his or her best
efforts to send, or to hand deliver, the notice at the same time
the placement is made." (Id.)
This bill would revise these provisions to expand the methods of
delivery, as specified, and to change the legislative intent to
be that the notice is made at least 24 hours prior to the time
the placement is made. This bill would make additional,
technical changes to this language.
Current law provides that when "it has been determined that a
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ward whose board and care is funded through the Aid to Families
with Dependent Children-Foster Care program is to be placed
out-of-county and that the sending county is to maintain
responsibility for supervision and visitation of the ward, the
sending county shall develop a plan of supervision and
visitation activities to be performed, and shall specify that
the sending county is responsible for performing those
activities. The sending county shall send to the receiving
county a copy of the plan of supervision and visitation, in
addition to the notice of placement . . ., prior to placement of
the ward. If placement occurs on a holiday or weekend, the plan
of supervision and visitation and the notice of placement shall
be provided to the receiving county on or before the end of the
next business day." (WIC 740 (b)(3).)
This bill would revise this subdivision to include a requirement
that, in "addition to the plan of supervision and visitation,
the sending county shall document information regarding known or
suspected gang affiliation or dangerous behavior of the ward
that indicates the ward may pose a safety concern in the
receiving county."
Current law provides that when it has been determined that a
ward whose placement is funded through the Aid to Families with
Dependent Children-Foster Care program is to be placed
out-of-county and the sending county plans that the receiving
county shall be responsible for the supervision and visitation
of the ward, the sending county shall develop a formal agreement
between the sending and receiving counties, and a case plan, as
specified. (WIC 740 (b)(4).)
This bill would require that the case plan include information
regarding known or suspected gang affiliation or dangerous
behavior of the ward that indicates the ward may pose a safety
concern for the receiving county.
Current law authorizes but does not require the probation
department of a receiving county that has a group home in which
a minor is placed by the probation department of another county,
after adjudication of the minor for any felony offense, to
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disclose to the sheriff of the receiving county or to the
municipal police department of the city in which the group home
is located, the name of the minor, the felony offense or
offenses for which the minor has been adjudicated, and the
address of the group home. (WIC 740 (b)(5).)
This bill would make this disclosure mandatory.
This bill would require that, "at the request of the probation
department of the county in which the group home facility is
located, the group home shall notify a probation official
designated by the probation department to receive notifications
. . . of unusual incidents concerning a ward placed by the
sending county that involved a response by local law enforcement
or emergency services personnel, including runaway incidents.
The notification shall include identifying information about the
ward. A group home facility shall notify the designated
probation official of a requesting probation department of an
unusual incident no later than the applicable deadline imposed
by law or department regulation for a group home facility to
notify the licensing agency of the unusual incident. The group
home facility shall be held harmless for inappropriate use of
identifying information about the ward that is contained in the
notification by the requesting probation department, or any
other party to whom the requesting probation department makes
the notification available." (emphasis added.)
This bill would provide that "gang affiliation" for purposes of
WIC Section 740 "shall have the same meaning as defined for data
entry into the CalGang system."
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
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houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
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<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
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. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not aggravate the prison overcrowding crisis
outlined above.
COMMENTS
1. Stated Need for This Bill
The author states:
In the summer of 2008, eight illegal alien juvenile
offenders from San Francisco escaped from a San
Bernardino group home. The incident highlighted the
relatively common practice of counties placing
juvenile offenders in out-of-county juvenile homes.
More importantly, though, it made county officials
aware that other jurisdictions were placing juvenile
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<2> Three Judge Court Tentative Ruling, 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 (Feb. 9, 2009).
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offenders in their county without proper
notification.
This bill seeks to improve communication between
counties and to strengthen oversight of juvenile
offenders placed in out-of-county community care
facilities . . . .
2. What This Bill Would Do
As explained in detail above, this bill would make a number of
changes concerning information about delinquent wards of the
juvenile court who are placed in licensed community facilities,
such as group homes, including the following:
Add sexual abuse and "a situation in which residents are
inadequately supervised" to the list of "reportable
incidents" licensed community facilities must report to
their licensing agency;
Include "runaway incidents" in the incident reports
licensed community facilities currently are required to
share with counties in which they are located, as
specified;
Delete from current law the requirement that the
identify and location of the placement agency be redacted
from shared incident reports;
Require that known gang affiliation, as defined, be
included in the written notice provided to probation in the
county where the ward is to be placed;
Require that the probation officer making a placement in
another county notify the probation officer in the
receiving county at least 24 hours prior to the placement,
instead of within 24 hours of the placement, as specified;
Require that counties placing wards in community
facilities in another county "document information
regarding known or suspected gang affiliation or dangerous
behavior of the ward that indicates the ward may pose a
safety concern in the receiving county," as specified;
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Require, rather than authorize as current law does, the
probation department in a county receiving a delinquent
ward who has been adjudicated for any felony into a
community facility to disclose to the sheriff or police, as
specified, the name of the minor, offense for which they
were adjudicated, and address of the group home they are
going to;
Require, at the request of probation group homes to
notify a probation official designated by the probation
department to receive notifications . . . of unusual
incidents concerning a ward placed by the sending county
that involved a response by local law enforcement or
emergency services personnel, including runaway incidents,
as specified; and
Define "gang affiliation" to mean the same as defined
for data entry into the CalGang system.
3. Double Referral
This bill was heard in Senate Human Services on April 14, 2009,
where it passed 5-0.
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