BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
AB 1618 (Chesbro)
As Amended March 11, 2014
Hearing Date: June 10, 2014
Fiscal: No
Urgency: No
NR
SUBJECT
Juveniles: Case File Inspection
DESCRIPTION
Existing law provides that a juvenile's case file may only be
inspected by specified individuals and officials including:
court personnel; the attorneys for the parties; county counsel;
members of the child protective services; members of children's
multidisciplinary teams, persons, or agencies providing
treatment or supervision of the minor; a court-appointed
investigator in a guardianship case; and a local child support
agency for the purpose of establishing paternity.
This bill would authorize the above persons serving in a similar
capacity for an Indian tribe, reservation, or tribal court to
inspect a juvenile's file when it involves a child who is a
member of, or who is eligible for membership in, that tribe.
BACKGROUND
Juvenile case files are confidential and may be accessed only by
specified classes of people and entities. Traditionally, only
the parties to a juvenile dependency hearing, which includes the
attorneys and parents, could access the case file without a
court order. This group of people has been expanded numerous
times over the years to include city attorneys or prosecutors,
judges, referees, hearing officers, law enforcement officers
actively participating in juvenile proceedings involving the
minor, the superintendent of the school where the minor is
enrolled, members of Child Protective Services, children's
multidisciplinary teams, and persons or agencies providing
(more)
AB 1618 (Chesbro)
Page 2 of ?
treatment or supervision of the minor. (Welf. & Inst. Code Sec.
827.) These persons and groups need not petition the court or
make a showing of good cause because they are presumptively
allowed access. Additionally, the courts are permitted to
authorize inspection by any other person designated by court
order. However, under existing law, tribes and tribal officials
are not presumptively granted this access, and thus must request
access through the court when an Indian child is involved in a
juvenile case. California has a unique history when it comes to
Native American legal and political policy. California is home
to over 100 federally recognized tribes, and has more Indians
living here than any other state. The cultural benefits
associated with preventing the breakup of Indian families and
tribes are well-documented, and have been a driving force behind
both state and federal legislation. In 1978 Congress passed the
Indian Child Welfare Act (ICWA). It was intended as a federal
mandate to those involved in the child custody system to work
collaboratively with tribes to prevent the breakup of Indian
families and tribes and to redress past wrongs of the child
custody system. However, many agencies still fail to comply
with procedural requirements such as notifying the tribes and
the Bureau of Indian Affairs (BIA) when a tribal youth is
involved in a juvenile proceeding, causing much frustration to
both the courts and the tribes. (Administrative Office of the
Courts, Bench Handbook: The Indian Child Welfare Act, revised
2013.)
This bill seeks to ensure that tribes have the necessary and
relevant information about Indian youths by allowing tribal
officers to access of juvenile court records of children who are
members of, or who are eligible for membership in, the tribe.
CHANGES TO EXISTING LAW
Existing law , under the federal Indian Child Welfare Act (ICWA),
provides that tribes are entitled to notice of child welfare
proceedings involving children who are either identified as
members or eligible for membership in the tribe. (25 U.S.C.
Sec. 1901 et seq.)
Existing law provides that tribes have presumptive jurisdiction
over child welfare matters involving children who are either
identified as members or eligible for membership in the tribe
and allows tribes to seek transfer of state court child welfare
matters involving these children to tribal court. If the case
remains in state court, existing law allows tribes to intervene
AB 1618 (Chesbro)
Page 3 of ?
and participate in those cases. (25 U.S.C. Sec. 1911; Welf. &
Inst. Code Sec. 305.5.)
Existing law provides that juvenile case files are confidential,
but authorizes specified persons and entities to access those
files. (Welf. & Inst. Code Sec. 827.)
Existing law provides for any non-specified person who seeks to
access the juvenile court file to submit a petition with the
court. Existing law requires the petition to be served on all
known interested parties 10 days prior to filing the petition.
(Welf. & Inst. Code Sec. 827.)
Existing law prohibits any party authorized to inspect a
dependency court case file from disseminating the file or its
contents unless otherwise permitted. (Welf. & Inst. Code Sec.
827(a)(3).)
This bill would authorize the following officials, or those
serving in a similar capacity, of an Indian tribe, reservation,
or tribal court, to inspect juvenile case files when the case
involves a child who is a member of, or is eligible for
membership in, that tribe:
court personnel;
the attorneys for the parties, judges, referees, other hearing
officers, probation officers, and law enforcement officers who
are actively participating in criminal or juvenile proceedings
involving the child;
the county counsel, city attorney, or any other attorney
representing the petitioning agency in a dependency action;
members of the child protective agencies, as defined;
members of children's multidisciplinary teams, persons, or
agencies providing treatment or supervision of the child;
judge, commissioner, or other hearing officer assigned to a
family law case with issues concerning custody or visitation,
or both, involving the child, and other specified family court
officials;
a court-appointed investigator who is actively participating
in a guardianship case involving the child; and
local child support agency.
COMMENT
1.Stated need for the bill
According to the author:
AB 1618 (Chesbro)
Page 4 of ?
Under both Federal and California law, tribes, tribal
officials, and tribal entities need to have access to juvenile
court files of children who are members of, or are eligible
for membership in, that tribe. Currently, they are not allowed
to access those files. Some courts have instituted local rules
to try to get around the restrictions, but this bill would
include them specifically within the exceptions in Welfare and
Institutions Code Section 827, allowing access in relevant
cases statewide on a uniform basis.
2.Better compliance with federal and state standards
The Indian Child Welfare Act (ICWA) establishes minimum federal
standards, both procedural and substantive, that govern the
removal of Indian children from their families and subsequent
placement in foster or adoptive homes. (Fresno County Dep't of
Children & Family Services v. Superior Court (2004) 122 Cal.4th
626.) Under the ICWA, there is a presumption that it is in the
best interests of an Indian child to retain tribal ties and
cultural heritage and in the interest of the tribe in preserving
future generations.
In 2007, SB 678 (Ducheny, Ch. 838, Stats. 2006) codified many of
the ICWA requirements into California Law. As a result, the
court in a child welfare proceeding involving an Indian child
must not only consider the child's interests, but also the
interests of the child's tribe. In any child custody proceeding
in which the court knows or has reason to know that an Indian
child is involved, the child's tribe must be notified of the
proceeding and of their right to intervene in the proceeding.
(25 U.S.C. Sec. 1912(a); Welf. & Inst. Code Sec. 224.2(a).)
However, under existing California law, juvenile case files are
confidential and available only to a handful of enumerated
officials. This bill would additionally authorize the tribal
equivalent of these enumerated officials to access juvenile
records to do so in cases involving Indian children.
Judicial Council, the sponsor of this bill, argues that there is
a conflict between federal and state law which requires notice
and allows tribes to intervene in juvenile cases involving
Native American children, and the juvenile courts that guard the
confidentiality of juvenile court records. In support, the
Judicial Council writes "by explicitly including tribes, tribal
officials, and tribal entities within the exception to the
confidentiality of juvenile court files, this conflict will be
AB 1618 (Chesbro)
Page 5 of ?
resolved, juvenile cases for tribal children will be able to
proceed more efficiently, and the best interests of tribal
children will be better served."
Support : California Welfare Directors Association; Executive
Committee of the Family Law Section of the State Bar; Legal
Services for Prisoners with Children
Opposition : None Known
HISTORY
Source : Judicial Council of California
Related Pending Legislation : None Known
Prior Legislation :
SB 927 (Runner, 2011) would have authorized an attorney for a
sibling of the minor to inspect and copy the dependency case
file upon showing good cause and the facts supporting why
inspection is necessary to the on-going representation of the
child. This bill died in the Senate Judiciary Committee.
AB 2228 (Garcia, Chapter 574, Statutes of 2004) among other
things, facilitated the sharing of information between the
family law and probate law courts in guardianship proceedings,
and the sharing of information between the family law and
probate law courts and juvenile court in the latter court's
proceedings in order to assist the court in determining the best
interest of the child.
Prior Vote :
Assembly Floor (Ayes 68, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
**************