BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
9
6
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SB 962 (Liu)
As Amended March 11, 2010
Hearing date: March 23, 2010
Penal Code
AA:dl
PRISONERS: PARTICIPATION IN COURT PROCEEDINGS
INVOLVING THEIR MINOR CHILDREN
HISTORY
Source: Los Angeles Dependency Lawyers, Inc.
Prior Legislation: None
Support: The Executive Committee of the Family Law Section of
the State Bar of
California; Taxpayers for Improving Public Safety
Opposition:None known
KEY ISSUE
SHOULD VIDEOCONFERENCING OR TELECONFERENCING, IF ORDERED BY A COURT
AND AVAILABLE, BE PROVIDED FOR PRISONERS TO PARTICIPATE IN COURT
PROCEEDINGS RELATING TO THE TERMINATION OF THEIR PARENTAL RIGHTS OR
THE COURT-ORDERED DEPENDENCY OF THEIR CHILD, AS SPECIFIED?
PURPOSE
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The purpose of this bill is to provide, at the court's
discretion and subject to availability, videoconferencing or
teleconferencing for prisoners to participate in court
proceedings relating to the termination of their parental rights
or the court-ordered dependency of their child, as specified.
Current law creates in state government the Department of
Corrections and Rehabilitation ("CDCR"), headed by a secretary
who is appointed by the Governor, subject to Senate
confirmation, and serves at the pleasure of the Governor. CDCR
consists of Adult Operations, Adult Programs, Juvenile Justice,
the Corrections Standards Authority, the Board of Parole
Hearings, the State Commission on Juvenile Justice, the Prison
Industry Authority, and the Prison Industry Board. (Government
Code 12838 (a).)
Current law creates the office of sheriff in each county and
includes:
Notwithstanding any other provision of law, except in
counties in which the sheriff, as of July 1, 1993, is not
in charge of and the sole and exclusive authority to keep
the county jail and the prisoners in it, the sheriff shall
take charge of and be the sole and exclusive authority to
keep the county jail and the prisoners in it, except for
work furlough facilities where by county ordinance the work
furlough administrator is someone other than the
sheriff. (Government Code 24000 and 26600 et seq.)
Current law provides that the board of supervisors of any county
may, by resolution, establish a department of corrections, to be
headed by an officer appointed by the board, which shall have
jurisdiction over all county functions, personnel, and
facilities, or so many as the board names in its resolution,
relating to institutional punishment, care, treatment, and
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rehabilitation of prisoners,
including, but not limited to, the county jail and industrial
farms and road camps, their functions and personnel.
(Government Code 23013.)
Current law provides that, where a judicial proceeding concerns
the termination of the parental rights of any prisoner,<1> or
the adjudication of the child of a prisoner a dependent child of
the court, the superior court of the county in which the
proceeding is pending, or a judge thereof, shall order notice of
any court proceeding regarding the proceeding transmitted to the
prisoner, as specified. (Penal Code 2625.)
Current law further requires the temporary removal of a prisoner
from an institution for the prisoner's production before the
court where a prisoner has advised the court of his or her
desire to be present, as specified. (Id.) "No proceeding
(terminating parental rights or dependency adjudication) may be
held . . . without the physical presence of the prisoner or the
prisoner's attorney, unless the court has before it a knowing
waiver of the right of physical presence signed by the prisoner
or an affidavit signed by the warden, superintendent, or other
person in charge of the institution, or his or her designated
representative stating that the prisoner has, by express
statement or action, indicated an intent not to appear at the
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<1> For purposes of this section the term "prisoner" is
defined to include "any individual in custody in a state prison,
the California Rehabilitation Center, or a county jail, or who
is a ward of the Department of the Youth Authority or who, upon
a verdict or finding that the individual was insane at the time
of committing an offense, or mentally incompetent to be tried or
adjudged to punishment, is confined in a state hospital for the
care and treatment of the mentally disordered or in any other
public or private treatment facility."
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proceeding."<2> (Id.)
This bill would provide, at the court's discretion and subject
to availability and consistency with other laws,
videoconferencing or teleconferencing options for prisoners to
participate in the proceedings described above.
Specifically, this bill would provide that a prisoner who is a
parent of a child involved in a dependency hearing described in
this section and who has either waived his or her right to
physical presence at the hearing, or who has not been ordered
before the court may, at the court's discretion, in order to
facilitate the parent's participation, be given the opportunity
to participate in the hearing by videoconference, if that
technology is available, and if that participation otherwise
complies with the law. If videoconferencing technology is not
available, this bill would provide that teleconferencing may be
utilized to facilitate parental participation.
This bill would state that, "(b)ecause of the significance of
dependency court hearings for parental rights and children's
long-term care, physical attendance by the parent at the
hearings is preferred to participation by videoconference or
teleconference. This section does not authorize the use of
videoconference or teleconference to replace in-person family
visits with prisoners."
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<2> These provisions expressly exclude "a prisoner sentenced to
death, whether or not that sentence is being appealed, in any
action or proceeding in which the prisoner's parental rights are
subject to adjudication." (Penal Code 2625(g).)
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This bill would provide that a "prisoner subject to this section
shall not lose internal job placement opportunities, be removed
from a court-ordered course, or be denied any earned privileges
as a result of his or her participation in the proceedings
described in this section, whether in person or by
videoconference or teleconference, unless the prisoner is absent
from the institution for this purpose for more than 10 days."
This bill additionally would authorize the Department of
Corrections and Rehabilitation to "establish a pilot project to
facilitate the participation of incarcerated parents in
dependency court hearings regarding their children."
This bill would provide that the "costs of the pilot project
shall be funded with private funds and shall be implemented only
after a determination is made by the Department of Finance that
private donations, sufficient to fully support the activities of
the project, have been deposited with the state."
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
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,"
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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
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, under funded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
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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.<3>
The court stayed implementation of its January 12, 2010 ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. That appeal, and the final outcome of this litigation,
is not anticipated until later this year or 2011.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Stated Need for This Bill
The author states in part:
A substantial majority of Californians in the criminal
justice system are parents. The California Research
Bureau estimates that 67% of male inmates are fathers
and 79% of female inmates are mothers (2000). Over
the last 15 years, an increasing number of adults have
been incarcerated under the state's more strict
criminal sentencing policies. As a consequence, the
number of children whose parents are in prison has
grown.
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<3> 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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These children often enter and remain in the child
welfare system because logistical issues prevent
incarcerated parents from maintaining their parental
rights, irrespective of their parenting practices.
Incarcerated parents often waive physical appearance
at a hearing, not because they are unwilling to be
present and participate, but because attending may
result in the loss of good time credits or
rehabilitation program eligibility . Often these are
the very credits or program participation required by
the family reunification case plan (Family and
Juvenile Law Advisory Committee). If a parent elects
to attend a dependency hearing in person, hearing and
travel time can take up to 10 days, greatly damaging
the parent's ability to fulfill the family
reunification requirements.
Given the length of an average sentence for women
prisoners, it is likely that parental rights will be
terminated unless the state can remove barriers to the
family reunification process (CRB, 2003). Termination
of parental rights is a striking example of the ways
in which the needs, rights, and obligations of
parents, families, children, and the state can come
into conflict (CRB, 2003). The process is
irreversible and effectively severs a parent's rights
over his or her child, as well as the child's extended
family relationships (CRB, 2003). For years,
researchers have cited transportation difficulties to
as a major barrier to involvement in dependency
hearings and have urged policy makers to fix this
problem (CRB, 2003). In the wake of fiscal distress,
counties in other states have already begun utilizing
video-conferencing for inmates as a cost-saving
measure .
SB 962 seeks to prevent unnecessary termination of
parental rights by allowing for a cost-savings
solution. This bill allows incarcerated parents to
participate in a child dependency hearing via
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video-conference -- if the technology is available --
for any contested hearing or a proceeding that could
result in termination of parental rights. The bill
ensures a prisoner in custody shall not lose internal
job placement opportunities, be removed from a
court-ordered course, or be denied privileges earned
in a correctional institution due to participation in
these proceedings unless the inmate is absent from the
institution for longer than ten days. In addition, a
two-year pilot project to facilitate dependency
hearings via video-conferencing will be conducted
through collaboration between Los Angeles Dependency
Lawyers (LADL) and a women's institution. . . .
The Legislature should remove barriers to
participation in dependency hearings in order to
promote family reunification and decrease the number
of children in the child welfare system.
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2. What This Bill Would Do
As explained above, this bill would allow for the use of
conferencing technology for prisoners to participate in judicial
proceedings involving their parental rights or a dependency
petition for their child under Welfare and Institutions Code
section 300. Current law provides prisoners with the right to
attend these proceedings; this bill would provide additional
conferencing technology options for how they could participate,
subject to availability, at the discretion of the court, and if
the participation otherwise complies with the law.
This bill also would provide that prisoners shall not lose
internal job placement opportunities, be removed from a
court-ordered course, or be denied any earned privileges as a
result of his or her participation in these proceedings, whether
in person or by videoconference or teleconference, unless the
prisoner is absent from the institution for this purpose for
more than 10 days.
Finally, this bill would authorize the Department of Corrections
and Rehabilitation to establish a pilot project to facilitate
the participation of incarcerated parents in dependency court
hearings regarding their children, to be funded privately, as
specified.
3. Children of Incarcerated Parents
As explained by the author, the incarceration of a parent has
many collateral effects on children. Consistent with the
author's statement, a March 2009 paper published by the National
Conference of State Legislatures stated:
Research suggests that intervening in the lives of
incarcerated parents and their children to preserve
and strengthen positive family connections can yield
positive societal benefits in the form of reduced
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recidivism, less intergenerational criminal justice
system involvement, and promotion of healthy child
development. In the words of one prominent researcher,
"[s]tudies . . . indicate that families are important
to prisoners and to the achievement of major social
goals, including the
prevention of recidivism and delinquency."<4>
With respect to involving inmates who are parents in court
proceedings involving their minor children, the paper noted:
Although inmate parents are vulnerable to losing
parental rights, they often are unaware of this
vulnerability or know very little about what they can
do to prevent
loss of rights. Even if they understand what is at
stake, administrative and logistical factors can
prevent them from attending critical court hearings.
Key to addressing these issues is ensuring that inmate
parents are consistently represented by attorneys who
are familiar not only with dependency litigation, but
also with the criminal justice system and applicable
corrections policies that affect incarcerated parents.
Addressing this problem also will require improved
coordination among law enforcement, the judiciary,
corrections and child welfare. California law, for
example, authorizes the presiding judge of the
juvenile court in each county to convene
representatives of these systems to develop protocols
to ensure notification, transportation and presence of
an incarcerated parent
at all court proceedings that affect his or her
child.<5>
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<4> Children of Incarcerated Parents, p. 1 ( Steve Christian
(National Conference of State Legislatures, March 2009)(footnote
omitted) ;
http://www.ncsl.org/documents/cyf/childrenofincarceratedparents.p
df .
<5> Id. at p. 11 (footnotes omitted).
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WOULD THIS BILL HAVE A POSITIVE IMPACT ON THE CHILDREN AND
FAMILIES OF INCARCERATED PARENTS?
HOW, IF AT ALL, WOULD THIS BILL IMPACT OPERATIONS AT CDCR
INSTITUTIONS?
4. Double-Referral
This bill has been double-referred to the Senate Judiciary
Committee as a second referral.
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