BILL ANALYSIS                                                                                                                                                                                                    




                                                                  AB 1828
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          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  









                                                                  AB 1828
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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