BILL NUMBER: SB 39 CHAPTERED
BILL TEXT
CHAPTER 468
FILED WITH SECRETARY OF STATE OCTOBER 11, 2007
APPROVED BY GOVERNOR OCTOBER 11, 2007
PASSED THE SENATE SEPTEMBER 5, 2007
PASSED THE ASSEMBLY AUGUST 30, 2007
AMENDED IN ASSEMBLY JUNE 28, 2007
AMENDED IN ASSEMBLY JUNE 12, 2007
AMENDED IN SENATE MAY 1, 2007
AMENDED IN SENATE APRIL 19, 2007
AMENDED IN SENATE APRIL 9, 2007
INTRODUCED BY Senator Migden
(Coauthor: Senator Alquist)
DECEMBER 12, 2006
An act to amend Section 827 of, and to add Sections 826.7 and
10850.4 to, the Welfare and Institutions Code, relating to child
abuse and neglect.
LEGISLATIVE COUNSEL'S DIGEST
SB 39, Migden. County welfare agencies and departments: child
abuse and neglect: files.
(1) Existing law requires the case file of a dependent child or
ward of the juvenile court to be kept confidential, except as
specified. Existing law permits the juvenile case files that pertain
to a deceased child who was within the jurisdiction of the juvenile
court, as provided, to be released to the public after a petition has
been filed and interested parties have been afforded an opportunity
to file an objection, subject to certain limitations.
This bill would revise those provisions and instead require that
juvenile case files that pertain to any child who died as the result
of child abuse or neglect shall be released to the public, subject to
certain limitations set forth in the bill. The bill would also add
specified attorneys to the persons allowed access to a juvenile case
file.
(2) Existing law provides for a system of child welfare services
administered by each county, with oversight by the State Department
of Social Services.
This bill would require the custodian of records within a county
welfare agency or department to disclose, within 5 days from a
request, or upon substantiation, specified records, subject to the
redaction of certain identifying personal information, of child abuse
or neglect that results in the death of a child.
This bill would also require all county welfare agencies and
departments to notify the State Department of Social Services, as
provided, of all child fatalities that occurred within its
jurisdiction that were the result of child abuse or neglect, and
would require the State Department of Social Services to establish a
procedure for, and annually report on, that notification, as
specified. The bill would also require the State Department of Social
Services to adopt emergency regulations to implement the
above-described changes, as specified, which regulations would be
excepted from the rulemaking provisions of the Administrative
Procedures Act.
By increasing the duties of local agencies, this bill would impose
a state-mandated local program.
(3) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares the following:
(a) During 2002, approximately 140 children in California were
officially reported as having died as a result of abuse or neglect.
The State Death Review Council has concluded that official reports of
child abuse deaths represent a significant undercount of the actual
number of child abuse and neglect fatalities.
(b) A child's death from abuse or neglect often leads to calls for
reform of the public child protection system. Without accurate and
complete information about the circumstances leading to the child's
death, public debate is stymied and the reforms, if adopted at all,
may do little to prevent further tragedies.
(c) Providing public access to juvenile case files in cases where
a child fatality occurs as a result of abuse or neglect will promote
public scrutiny and an informed debate of the circumstances that led
to the fatality thereby promoting the development of child protection
policies, procedures, practices, and strategies that will reduce or
avoid future child deaths and injuries.
(d) The current procedures for accessing information about a child'
s death from abuse or neglect are costly, at times resulting in
lengthy delays in the release of that information, fail to provide
adequate guidance for what information should and should not be
disclosed, and permit significant variation from one jurisdiction to
another in the nature and extent of the information released.
(e) Thus, it is the intent of the Legislature to maximize public
access to juvenile case files in cases where a child fatality occurs
as a result of child abuse or neglect by both providing for an
administrative release of certain documents without the filing of a
legal petition pursuant to paragraph (2) of subdivision (a) of
Section 827 of the Welfare and Institutions Code, while also ensuring
that basic privacy protections are consistently afforded, and by
enacting reforms to the current process of filing a petition pursuant
to paragraph (2) of subdivision (a) of Section 827 of the Welfare
and Institutions Code that will offer clarifying guidance to juvenile
courts of the legal standards that apply to those petitions and an
expedited process for their disposition.
(f) In petitions governed by paragraph (2) of subdivision (a) of
Section 827 of the Welfare and Institutions Code, the Legislature has
concluded that when a dependent child dies within the jurisdiction
of the juvenile court, the presumption of confidentiality for
juvenile case files evaporates and the requirement of an expedited
decision becomes manifest, because community reaction to the child's
death may abate with the passage of time and, without a prompt
investigation and assessment, the opportunity to effect positive
change may be lost.
SEC. 2. Section 826.7 is added to the Welfare and Institutions
Code, to read:
826.7. Juvenile case files that pertain to a child who died as
the result of abuse or neglect shall be released by the custodian of
records of the county welfare department or agency to the public
pursuant to Section 10850.4 or an order issued pursuant to paragraph
(2) of subdivision (a) of Section 827.
SEC. 3. Section 827 of the Welfare and Institutions Code is
amended to read:
827. (a) (1) Except as provided in Section 828, a case file may
be inspected only by the following:
(A) Court personnel.
(B) The district attorney, a city attorney, or city prosecutor
authorized to prosecute criminal or juvenile cases under state law.
(C) The minor who is the subject of the proceeding.
(D) The minor's parents or guardian.
(E) 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 minor.
(F) The county counsel, city attorney, or any other attorney
representing the petitioning agency in a dependency action.
(G) The superintendent or designee of the school district where
the minor is enrolled or attending school.
(H) Members of the child protective agencies as defined in Section
11165.9 of the Penal Code.
(I) The State Department of Social Services, to carry out its
duties pursuant to Division 9 (commencing with Section 10000), and
Part 5 (commencing with Section 7900) of Division 12, of the Family
Code to oversee and monitor county child welfare agencies, children
in foster care or receiving foster care assistance, and out-of-state
placements, Section 10850.4, and paragraph (2).
(J) Authorized legal staff or special investigators who are peace
officers who are employed by, or who are authorized representatives
of, the State Department of Social Services, as necessary to the
performance of their duties to inspect, license, and investigate
community care facilities, and to ensure that the standards of care
and services provided in those facilities are adequate and
appropriate and to ascertain compliance with the rules and
regulations to which the facilities are subject. The confidential
information shall remain confidential except for purposes of
inspection, licensing, or investigation pursuant to Chapter 3
(commencing with Section 1500) and Chapter 3.4 (commencing with
Section 1596.70) of Division 2 of the Health and Safety Code, or a
criminal, civil, or administrative proceeding in relation thereto.
The confidential information may be used by the State Department of
Social Services in a criminal, civil, or administrative proceeding.
The confidential information shall be available only to the judge or
hearing officer and to the parties to the case. Names that are
confidential shall be listed in attachments separate to the general
pleadings. The confidential information shall be sealed after the
conclusion of the criminal, civil, or administrative hearings, and
may not subsequently be released except in accordance with this
subdivision. If the confidential information does not result in a
criminal, civil, or administrative proceeding, it shall be sealed
after the State Department of Social Services decides that no further
action will be taken in the matter of suspected licensing
violations. Except as otherwise provided in this subdivision,
confidential information in the possession of the State Department of
Social Services may not contain the name of the minor.
(K) Members of children's multidisciplinary teams, persons, or
agencies providing treatment or supervision of the minor.
(L) A judge, commissioner, or other hearing officer assigned to a
family law case with issues concerning custody or visitation, or
both, involving the minor, and the following persons, if actively
participating in the family law case: a family court mediator
assigned to a case involving the minor pursuant to Article 1
(commencing with Section 3160) of Chapter 11 of Part 2 of Division 8
of the Family Code, a court-appointed evaluator or a person
conducting a court-connected child custody evaluation, investigation,
or assessment pursuant to Section 3111 or 3118 of the Family Code,
and counsel appointed for the minor in the family law case pursuant
to Section 3150 of the Family Code. Prior to allowing counsel
appointed for the minor in the family law case to inspect the file,
the court clerk may require counsel to provide a certified copy of
the court order appointing him or her as the minor's counsel.
(M) A court-appointed investigator who is actively participating
in a guardianship case involving a minor pursuant to Part 2
(commencing with Section 1500) of Division 4 of the Probate Code and
acting within the scope of his or her duties in that case.
(N) A local child support agency for the purpose of establishing
paternity and establishing and enforcing child support orders.
(O) Juvenile justice commissions as established under Section 225.
The confidentiality provisions of Section 10850 shall apply to a
juvenile justice commission and its members.
(P) Any other person who may be designated by court order of the
judge of the juvenile court upon filing a petition.
(2) (A) Notwithstanding any other law and subject to subparagraph
(A) of paragraph (3), juvenile case files, except those relating to
matters within the jurisdiction of the court pursuant to Section 601
or 602, that pertain to a deceased child who was within the
jurisdiction of the juvenile court pursuant to Section 300, shall be
released to the public pursuant to an order by the juvenile court
after a petition has been filed and interested parties have been
afforded an opportunity to file an objection. Any information
relating to another child or which could identify another child,
except for information about the deceased, shall be redacted from the
juvenile case file prior to release, unless a specific order is made
by the juvenile court to the contrary. Except as provided in this
paragraph, the presiding judge of the juvenile court may issue an
order prohibiting or limiting access to the juvenile case file, or
any portion thereof, of a deceased child only upon a showing by a
preponderance of evidence that release of the juvenile case file or
any portion thereof is detrimental to the safety, protection, or
physical or emotional well-being of another child who is directly or
indirectly connected to the juvenile case that is the subject of the
petition.
(B) This paragraph represents a presumption in favor of the
release of documents when a child is deceased unless the statutory
reasons for confidentiality are shown to exist.
(C) If a child whose records are sought has died, and documents
are sought pursuant to this paragraph, no weighing or balancing of
the interests of those other than a child is permitted.
(D) A petition filed under this paragraph shall be served on
interested parties by the petitioner, if the petitioner is in
possession of their identity and address, and on the custodian of
records. Upon receiving a petition, the custodian of records shall
serve a copy of the request upon all interested parties that have not
been served by the petitioner or on the interested parties served by
the petitioner if the custodian of records possesses information,
such as a more recent address, indicating that the service by the
petitioner may have been ineffective.
(E) The custodian of records shall serve the petition within 10
calendar days of receipt. If any interested party, including the
custodian of records, objects to the petition, the party shall file
and serve the objection on the petitioning party no later than 15
calendar days of service of the petition.
(F) The petitioning party shall have 10 calendar days to file any
reply. The juvenile court shall set the matter for hearing no more
than 60 calendar days from the date the petition is served on the
custodian of records. The court shall render its decision within 30
days of the hearing. The matter shall be decided solely upon the
basis of the petition and supporting exhibits and declarations, if
any, the objection and any supporting exhibits or declarations, if
any, and the reply and any supporting declarations or exhibits
thereto, and argument at hearing. The court may solely upon its own
motion order the appearance of witnesses. If no objection is filed to
the petition, the court shall review the petition and issue its
decision within 10 calendar days of the final day for filing the
objection. Any order of the court shall be immediately reviewable by
petition to the appellate court for the issuance of an extraordinary
writ.
(3) Access to juvenile case files pertaining to matters within the
jurisdiction of the juvenile court pursuant to Section 300 shall be
limited as follows:
(A) If a juvenile case file, or any portion thereof, is privileged
or confidential pursuant to any other state law or federal law or
regulation, the requirements of that state law or federal law or
regulation prohibiting or limiting release of the juvenile case file
or any portions thereof shall prevail. Unless a person is listed in
subparagraphs (A) to (O), inclusive, of paragraph (1) and is entitled
to access under the other state law or federal law or regulation
without a court order, all those seeking access, pursuant to other
authorization, to portions of, or information relating to the
contents of, juvenile case files protected under another state law or
federal law or regulation, shall petition the juvenile court. The
juvenile court may only release the portion of, or information
relating to the contents of, juvenile case files protected by another
state law or federal law or regulation if disclosure is not
detrimental to the safety, protection, or physical or emotional
well-being of a child who is directly or indirectly connected to the
juvenile case that is the subject of the petition. This paragraph
shall not be construed to limit the ability of the juvenile court to
carry out its duties in conducting juvenile court proceedings.
(B) Prior to the release of the juvenile case file or any portion
thereof, the court shall afford due process, including a notice of
and an opportunity to file an objection to the release of the record
or report to all interested parties.
(4) A juvenile case file, any portion thereof, and information
relating to the content of the juvenile case file, may not be
disseminated by the receiving agencies to any persons or agencies,
other than those persons or agencies authorized to receive documents
pursuant to this section. Further, a juvenile case file, any portion
thereof, and information relating to the content of the juvenile case
file, may not be made as an attachment to any other documents
without the prior approval of the presiding judge of the juvenile
court, unless it is used in connection with and in the course of a
criminal investigation or a proceeding brought to declare a person a
dependent child or ward of the juvenile court.
(5) Individuals listed in subparagraphs (A), (B), (C), (D), (E),
(F), (H), and (I) of paragraph (1) may also receive copies of the
case file. In these circumstances, the requirements of paragraph (4)
shall continue to apply to the information received.
(b) (1) While the Legislature reaffirms its belief that juvenile
court records, in general, should be confidential, it is the intent
of the Legislature in enacting this subdivision to provide for a
limited exception to juvenile court record confidentiality to promote
more effective communication among juvenile courts, family courts,
law enforcement agencies, and schools to ensure the rehabilitation of
juvenile criminal offenders as well as to lessen the potential for
drug use, violence, other forms of delinquency, and child abuse.
(2) Notwithstanding subdivision (a), written notice that a minor
enrolled in a public school, kindergarten to grade 12, inclusive, has
been found by a court of competent jurisdiction to have committed
any felony or any misdemeanor involving curfew, gambling, alcohol,
drugs, tobacco products, carrying of weapons, a sex offense listed in
Section 290 of the Penal Code, assault or battery, larceny,
vandalism, or graffiti shall be provided by the court, within seven
days, to the superintendent of the school district of attendance.
Written notice shall include only the offense found to have been
committed by the minor and the disposition of the minor's case. This
notice shall be expeditiously transmitted by the district
superintendent to the principal at the school of attendance. The
principal shall expeditiously disseminate the information to those
counselors directly supervising or reporting on the behavior or
progress of the minor. In addition, the principal shall disseminate
the information to any teacher or administrator directly supervising
or reporting on the behavior or progress of the minor whom the
principal believes needs the information to work with the pupil in an
appropriate fashion, to avoid being needlessly vulnerable or to
protect other persons from needless vulnerability.
Any information received by a teacher, counselor, or administrator
under this subdivision shall be received in confidence for the
limited purpose of rehabilitating the minor and protecting students
and staff, and shall not be further disseminated by the teacher,
counselor, or administrator, except insofar as communication with the
juvenile, his or her parents or guardians, law enforcement
personnel, and the juvenile's probation officer is necessary to
effectuate the juvenile's rehabilitation or to protect students and
staff.
An intentional violation of the confidentiality provisions of this
paragraph is a misdemeanor punishable by a fine not to exceed five
hundred dollars ($500).
(3) If a minor is removed from public school as a result of the
court's finding described in subdivision (b), the superintendent
shall maintain the information in a confidential file and shall defer
transmittal of the information received from the court until the
minor is returned to public school. If the minor is returned to a
school district other than the one from which the minor came, the
parole or probation officer having jurisdiction over the minor shall
so notify the superintendent of the last district of attendance, who
shall transmit the notice received from the court to the
superintendent of the new district of attendance.
(c) Each probation report filed with the court concerning a minor
whose record is subject to dissemination pursuant to subdivision (b)
shall include on the face sheet the school at which the minor is
currently enrolled. The county superintendent shall provide the court
with a listing of all of the schools within each school district,
within the county, along with the name and mailing address of each
district superintendent.
(d) Each notice sent by the court pursuant to subdivision (b)
shall be stamped with the instruction: "Unlawful Dissemination Of
This Information Is A Misdemeanor." Any information received from the
court shall be kept in a separate confidential file at the school of
attendance and shall be transferred to the minor's subsequent
schools of attendance and maintained until the minor graduates from
high school, is released from juvenile court jurisdiction, or reaches
the age of 18 years, whichever occurs first. After that time the
confidential record shall be destroyed. At any time after the date by
which a record required to be destroyed by this section should have
been destroyed, the minor or his or her parent or guardian shall have
the right to make a written request to the principal of the school
that the minor's school records be reviewed to ensure that the record
has been destroyed. Upon completion of any requested review and no
later than 30 days after the request for the review was received, the
principal or his or her designee shall respond in writing to the
written request and either shall confirm that the record has been
destroyed or, if the record has not been destroyed, shall explain why
destruction has not yet occurred.
Except as provided in paragraph (2) of subdivision (b), no
liability shall attach to any person who transmits or fails to
transmit any notice or information required under subdivision (b).
(e) For purposes of this section, a "juvenile case file" means a
petition filed in any juvenile court proceeding, reports of the
probation officer, and all other documents filed in that case or made
available to the probation officer in making his or her report, or
to the judge, referee, or other hearing officer, and thereafter
retained by the probation officer, judge, referee, or other hearing
officer.
SEC. 4. Section 10850.4 is added to the Welfare and Institutions
Code, to read:
10850.4. (a) Within five business days of learning that a child
fatality has occurred in the county and that there is a reasonable
suspicion that the fatality was caused by abuse or neglect, the
custodian of records for the county child welfare agency, upon
request, shall release the following information:
(1) The age and gender of the child.
(2) The date of death.
(3) Whether the child was in foster care or in the home of his or
her parent or guardian at the time of death.
(4) Whether an investigation is being conducted by a law
enforcement agency or the county child welfare agency.
(b) All cases in which abuse or neglect leads to a child's death
shall be subject to the disclosures required in subdivision (c).
Abuse or neglect is determined to have led to a child's death if one
or more of the following conditions are met:
(1) A county child protective services agency determines that the
abuse or neglect was substantiated.
(2) A law enforcement investigation concludes that abuse or
neglect occurred.
(3) A coroner or medical examiner concludes that the child who
died had suffered abuse or neglect.
(c) Upon completion of the child abuse or neglect investigation
into the child's death, as described in subdivision (b), the
following documents from the juvenile case file shall be released by
the custodian of records upon request, subject to the redactions set
forth in subdivision (e):
(1) All of the information in subdivision (a).
(2) For cases in which the child's death occurred while living
with a parent or guardian, all previous referrals of abuse or neglect
of the deceased child while living with that parent or guardian
shall be disclosed along with the following documents:
(A) The emergency response referral information form and the
emergency response notice of referral disposition form completed by
the county child welfare agency relating to the abuse or neglect that
caused the death of the child.
(B) Any cross reports completed by the county child welfare agency
to law enforcement relating to the deceased child.
(C) All risk and safety assessments completed by the county child
welfare services agency relating to the deceased child.
(D) All health care records of the deceased child, excluding
mental health records, related to the child's death and previous
injuries reflective of a pattern of abuse or neglect.
(E) Copies of police reports about the person against whom the
child abuse or neglect was substantiated.
(3) For cases in which the child's death occurred while the child
was in foster care, the following documents in addition to those
specified in paragraphs (1) and (2) generated while the child was
living in the foster care placement that was the placement at the
time of the child's death:
(A) Records pertaining to the foster parents' initial licensing
and renewals and type of license or licenses held, if in the case
file.
(B) All reported licensing violations, including notices of
action, if in the case file.
(C) Records of the training completed by the foster parents, if in
the case file.
(d) The documents listed in subdivision (c) shall be released to
the public by the custodian of records within 10 business days of the
request or the disposition of the investigation, whichever is later.
(e) (1) Prior to releasing any document pursuant to subdivision
(c), the custodian of records shall redact the following information:
(A) The names, addresses, telephone numbers, ethnicity, religion,
or any other identifying information of any person or institution,
other than the county or the State Department of Social Services,
that is mentioned in the documents listed in paragraphs (2) and (3)
of subdivision (c).
(B) Any information that would, after consultation with the
district attorney, jeopardize a criminal investigation or proceeding.
(C) Any information that is privileged, confidential, or not
subject to disclosure pursuant to any other state or federal law.
(2) (A) The State Department of Social Services shall promulgate a
regulation listing the laws described in subparagraph (C) of
paragraph (1) and setting forth standards governing redactions.
(B) Notwithstanding the rulemaking provisions of the
Administrative Procedures Act (Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code),
until emergency regulations are filed with the Secretary of State,
the State Department of Social Services may implement the changes
made to Section 827 and this section at the 2007-08 Regular Session
of the Legislature through all county letters or similar instructions
from the director. The department shall adopt as emergency
regulations, as necessary to implement those changes, no later than
January 1, 2009.
(C) The adoption of regulations pursuant to this paragraph shall
be deemed to be an emergency necessary for the immediate preservation
of the public peace, health, safety, or general welfare. The
emergency regulations authorized by this section shall be exempt from
review by the Office of Administrative Law. The emergency
regulations authorized by this section shall be submitted for filing
with the Secretary of State and shall remain in effect for no more
than 180 days, by which time the final regulations shall be adopted.
(f) Upon receiving a request for the documents listed in
subdivision (c), the custodian of records shall notify and provide a
copy of the request upon counsel for any child who is directly or
indirectly connected to the juvenile case file. If counsel for a
child, including the deceased child or any sibling of the deceased
child, objects to the release of any part of the documents listed in
paragraphs (2) and (3) of subdivision (c), they may petition the
juvenile court for relief to prevent the release of any document or
part of a document requested pursuant to paragraph (2) of subdivision
(a) of Section 827.
(g) Documents from the juvenile case file, other than those listed
in paragraphs (2) and (3) of subdivision (c), shall only be
disclosed upon an order by the juvenile court pursuant to Section
827.
(h) Once documents pursuant to this section have been released by
the custodian of records, the State Department of Social Services or
the county welfare department or agency may comment on the case
within the scope of the release.
(i) Information released by a custodian of records consistent with
the requirements of this section does not require prior notice to
any other individual.
(j) Each county welfare department or agency shall notify the
State Department of Social Services of every child fatality that
occurred within its jurisdiction that was the result of child abuse
or neglect. Based on these notices and any other relevant information
in the State Department of Social Services' possession, the
department shall annually issue a report identifying the child
fatalities and any systemic issues or patterns revealed by the
notices and other relevant information. The State Department of
Social Services, after consultation with interested
stakeholders, shall provide
instructions by an all county letter regarding the procedure for
notification.
(k) For purposes of this section, the following definitions apply:
(1) "Child abuse or neglect" has the same meaning as defined in
Section 11165.6 of the Penal Code.
(2) "Custodian of records," for the purposes of this section and
paragraph (2) of subdivision (a) of Section 827, means the county
welfare department or agency.
(3) "Juvenile case files" or "case files" include any juvenile
court files, as defined in Rule 5.552 of the California Rules of
Court, and any county child welfare department or agency or State
Department of Social Services records regardless of whether they are
maintained electronically or in paper form.
(4) "Substantiated" has the same meaning as defined in Section
11165.12 of the Penal Code.
(l) A person disclosing juvenile case file information as required
by this section shall not be subject to suit in civil or criminal
proceedings for complying with the requirements of this section.
(m) This section shall apply only to deaths that occur on or after
January 1, 2008.
(n) Nothing in this section shall require a custodian of records
to retain documents beyond any date otherwise required by law.
(o) Nothing in this section shall be construed as requiring a
custodian of records to obtain documents not in the case file.
SEC. 5. If the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code.