BILL ANALYSIS �
AB 1828
Page A
Date of Hearing: April 8, 2014
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Mark Stone, Chair
AB 1828 (Donnelly) - As amended: March 20, 2014
SUBJECT : Child welfare: investigations: video and audio
recording.
SUMMARY : Requires social workers to conduct a video or audio
recording of his or her investigation into allegations of abuse
of a minor. Specifically, this bill :
1)Establishes "Sammy's Law" to require county child protective
services (CPS) social workers to use a video and audio
recorder to make a video or audio recording of his or her
interactions with the children and their parents during an
investigation.
2)Requires the social worker to acquire a parent's or child's
consent in order to record the interaction via video or audio.
3)Requires video and audio recordings to be cataloged and
preserved by the county welfare agency (CWA).
4)Requires CWAs to adopt a policy that outlines the use of video
and audio equipment, as specified.
5)Requires CWAs, during a dependency hearing, to produce a copy
of any audio or video recording in a usable format upon
request of the parent(s).
6)Provides that if a video or audio recording is not provided by
a CWA, the defendant is entitled to an instruction that the
missing information is presumed to be exculpatory; prohibits a
social worker from testifying about any information that was
recorded; and precludes the judge from considering any
information from the recording in his or her ruling(s).
EXISTING LAW
1)States that the purpose of child welfare law is to provide
maximum safety and protection for children who are currently
being physically, sexually, emotionally abused, neglected, or
exploited, and to ensure the safety, protection, and physical
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and emotional well-being of children who are at risk of harm.
(W&I Code 300.2)
2)States the intent of the Legislature to preserve and
strengthen a child's family ties whenever possible and to
reunify a foster youth with his or her biological family
whenever possible, or to provide a permanent placement
alternative, such as adoption or guardianship. (W&I Code
16000)
3)Permits a peace officer or social worker to take a minor into
temporary custody if s/he is believed to be or is a victim of
abuse or neglect at the hands of their parent or legal
guardian. (Welfare and Institutions (W&I) Code 305)
4)Requires a peace officer or social worker, when taking a minor
into temporary custody, to take immediate steps to notify the
minor's parent, guardian, or a responsible relative that the
minor is in custody and that the child has been placed in a
facility authorized by law to care for the child, and shall
provide a telephone number at which the minor may be
contacted, unless otherwise specified. (WIC 308)
5)Provides a process by which a peace officer may transfer a
child in temporary custody to a social worker, who must then
immediately investigate the reasons why the child has been
taken into custody and consider whether the child can remain
safely in his or her home and be released to his or her
parents, or whether the child should be retained in an
out-of-home placement. (W&I Code 306 and 309)
6)Requires a county to file a petition to the court requesting a
detention hearing within 48 hours of placing a child under
temporary custody to determine whether the child should remain
in custody and whether any specific court permissions are
necessary to provide for the health and safety of the child.
(W&I Code 313 and 319)
7)Requires a "detention hearing" to be held within 24 hours of
the next court day whenever a detention petition is filed with
the court. (W&I Code 315)
8)Requires a court to appoint counsel for a child taken in to
temporary custody who shall advocate for the protection,
safety, and physical and emotional well-being of the child.
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(W&I Code 317(c))
FISCAL EFFECT : Unknown.
COMMENTS :
Maintaining the Family : Historically, it has been the stated
policy of California that when a child is removed from the home,
first preference should be given to placing the child with
another parent, or with his or her relatives whenever possible
and appropriate. This has helped to preserve and strengthen the
social bedrock of our society, by keeping families together and
reducing society's reliance on its social welfare system.
Child Welfare Services : 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. However, 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.
(Welfare and Institutions Code Sections 306 and 309)
The Welfare and Institutions Code 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
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institutionalized and is unable to arrange for care for the
child, such as placement with a known relative or nonrelative
extended family member (NREFM). 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 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.
Temporary Custody : When it is suspected that a child is a
victim of physical, sexual, or emotional abuse, or neglect or
exploitation that results in harm to the health and safety of
the child, any person may report that abuse or neglect to CPS.
Additionally certain individuals, such as physicians and
teachers, are mandated under state and federal law to
immediately report any suspicion or identification of child
abuse or neglect to CPS. After the report of abuse or neglect
is made, a county welfare agency's (CWA) CPS social worker is
required to immediately investigate the complaint to determine
its validity. If the complaint is found to be valid, the social
worker may remove the child from the family and place the child
into temporary custody.
This allows for the immediate removal of the child from harm,
while the CWA and the court investigate whether the child should
remain in temporary custody or be ruled a dependent of the
state. Temporary custody does not eliminate all rights of the
parent; rather removal of parental rights depends on what "care,
custody and control" rights the parent(s) may retain, as
determined by the court on a case by case basis. Typically, the
parent retains educational and health rights over the child,
which, again, depends on the ruling of the court.
The timelines and requirements to address temporary custody are
laid out in the W&I Code and provide an adjudicatory process
that must be conducted expeditiously to limit, to the extent
possible, any harm to the child. This includes limiting undue
harm due to the removal of the child from the family for health
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and safety purposes, as well as avoiding emotional harm to the
child due to separation from his or her parent(s).
The timeline guiding temporary custody and dependency is as
follows:
1) Detention Petition - Within 48 hours of removal of a
child from the custody of his or her parent(s), the CWA
must file a detention petition with the juvenile court.
The detention petition must include the reasons why the
child was removed from the home, and any request of the
court necessary to provide for the health and safety of the
child, which includes any needed medical or surgical
procedures and treatment.
2) Detention Hearing - Within 24 hours of the filing of the
detention petition, the court must, at its next court day,
hold a detention hearing where it will consider whether the
child should remain in temporary custody. It is at this
hearing that the court can entertain any requests from the
CWA or the parent(s) as to the care of the child, which
includes any necessary permission to conduct medical care.
3) Jurisdictional Hearing - Within 15 days of the filing of
the detention petition, the court must hold a
jurisdictional hearing to determine whether it has the
jurisdiction to adjudicate the child.
4) Dispositional Hearing - Within 60 days of the filing of
the detention petition, the court must hold a dispositional
hearing, unless continued as permitted by the court, to
rule on whether the child will be reunited with his or her
parent(s) or become a dependent of the state.
It should be noted that the jurisdictional and dispositional
hearing can be held concurrently.
Need for this bill : Stating the need for the bill, the author
writes:
"There are far too many CPS cases that are disputed by the
parents who think that the CPS worker's interpretation was
wrong. This simple measure will end these arguments and
allow a judge to see impartial audio and visual evidence of
the events that transpired and the interactions between the
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social worker and the family. [This bill] is necessary to
ensure that every child who needs to be protected from
abuse and neglect is, and that those children who are safe
in their home are not taken removed without cause."
Staff comments : This measure seeks to require social workers,
who, in responding to an allegation of abuse or neglect upon a
child, to record, either in audio or video, their interactions
with the child and his or her parents in their investigation of
the alleged abuse or neglect. It also requires the social
worker to acquire the consent of the child or the parent(s) in
order to record his or her investigation. If the investigation
leads to the child being taken into temporary custody or leads
to the criminal prosecution of the parent(s) for abuse or
neglect, it requires the CWA or prosecuting attorney to produce
a copy of the recording. However, if the recording is not
provided it specifically limits the information contained in the
recording from being used in court or in any subsequent
dependency or criminal court proceedings.
In providing the reasoning for this measure, the author states
that its "genesis comes from a CPS incident last year (2013) in
Sacramento County where a child, in this case Sammy Nikolayev,
was taken from his parents without a compelling reason." As
reported in the media, the child, at the time of removal, was
five months old and was reported to CPS by a local hospital, as
required by federal and state mandatory reporting laws.
According to the author, when the child was being taken into
temporary custody, the child's mother set up a camera to record
the incident. He goes on to state that "without that quick
thinking mother setting up the camera, that case could still
possibly be raging on."
The video referenced by the author, which is available on line,
is limited to law enforcement forcibly entering the home and
removing the child from the parents. What the video does not
reveal is why the child came to the attention of CPS; the CPS
investigation, including interviews with the child's physicians;
whether there was interaction with the parent(s); whether the
parents were cooperative in responding to the investigation; and
whether CPS and law enforcement acted in compliance with the
law. The numerous questions that the video does not answer
speak to this bill's limitations, as proposed. In further
stating his reasoning behind this measure, the author states
"there are far too many CPS cases that are disputed by the
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parents who think that the CPS worker's interpretation was
wrong" and that the "burden of proof, should, however be on CPS
to record their interactions in these cases so that the video
and audio evidence can be used in court and a decision can be
made on visual and auditory evidence instead of pitting social
workers against parents." The author is correct; the burden is
on CPS to evaluate whether there is sufficient evidence relating
to allegations of abuse or neglect in order to remove the a
child from his or her parent's custody. However, it is not the
intent of the state's child welfare laws to err on the side of
the parent(s) during a CPS investigation, rather it is "to
provide maximum safety and protection for children who are
currently being physically, sexually, emotionally abused,
neglected, or exploited, and to ensure the safety, protection,
and physical and emotional well-being of children who are at
risk of harm."<1>
It is unclear whether the requirements in this bill will achieve
the author's stated goal and whether the outcomes of the
intended audio and video recordings could produce more
unintended consequences than benefits. Audio or video
recordings are limited by what can be recorded. Not everything
observed by the CPS social worker can be captured on video. The
same applies for an audio recording, where the information is
limited to what the recording device's microphone can detect.
This can limit the reliability audio or video recordings in that
they may not comprehensively reflect what is observed or learned
by the social worker during his or her investigation.
Additionally, devices used for the recording of an investigation
can lead to errors in how information is conveyed; more
specifically, devices can break, malfunction, be unwieldy, and
can make an already uncomfortable situation worse, thus
interfering and possibly undermining the social worker's
interaction with the parent(s) and child.
Writing in opposition to this measure, the California Welfare
Directors Association writes:
"More often than not, time is of the essence with these
investigations. Accordingly, it is imperative that our CPS
social workers be able to conduct interviews with children
and their parents with unfettered access. Where additional
unnecessary, duplicative, and overly burdensome
requirements are imposed on our CPS social workers, child
-------------------------
<1> Welfare and Institutions Code 300.2
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safety is not improved, and instead, could be diminished."
As a result, this measure may further complicate, rather than
help provide a clearer assessment of whether the child is a
victim of abuse, and it could lead to uncertainties and
discrepancies in the investigation.
The bill also provides that an audio or video recording not
provided by CPS would disallow information contained in the
recording from being used in a criminal proceeding involving the
parent(s). However, the investigatory role of the CPS worker is
to conduct the investigation and determine whether the child is
at an immediate risk of harm. It is not a criminal
investigation, which is required to adhere to higher evidentiary
standards and legal procedure. As stated by the National
Association of Social Workers in its opposition to this bill:
"child abuse/neglect investigators are not probing criminal
events -- the police and District and Attorney are looped
in if findings lead them to believe that a prosecution is
in order -- not the case in most child welfare matters. CPS
workers do not pursue prosecutions but only protective
functions toward children. They turn over certain findings
to law enforcement, but any criminal prosecution must meet
a higher standard of evidence than the protective function
of CPS and that is not up to CPS to determine. In the most
serious/severe situations, specialized interviewing offices
(with 2-way mirrors & recording devices) are used, in
conjunction with police, district attorney, and other
relevant professionals, to prevent multiple interviews of
children."
Moreover, requiring that information recorded in a CPS
investigation be precluded from use in a criminal proceeding if
the recording is unavailable could unfairly limit district
attorneys and law enforcement from presenting a legitimate case
of child abuse and neglect, thereby potentially increasing rates
of unaddressed child abuse. Again, this contradicts legislative
intent to protect a child from abuse and neglect as provided for
in the state's child welfare laws.
Lastly, the bill requires a social worker to obtain the consent
of a child to record the investigation. However, children
cannot legally provide consent because they are minors. This
renders this requirement untenable.
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REGISTERED SUPPORT / OPPOSITION :
Support
None on file.
Opposition
National Association of Social Workers, California Chapter
County Welfare Directors Association of California (CWDA)
Analysis Prepared by : Chris Reefe / HUM. S. / (916) 319-2089