Existing law authorizes, except as specified, a person who is the subject of a juvenile court record, or the county probation officer, to petition the court to seal the records relating to the persons case, including records in the custody of the juvenile court and the probation officer and any other agencies, including law enforcement agencies and public officials as the petitioner alleges to have custody of the records. Existing law authorizes the petition to be filed 5 years or more after the jurisdiction of the juvenile court has terminated or, if no petition was filed, 5 years or more after the person was cited to appear before a probation officer or was taken before a probation officer or law enforcement officer, or, in any case, at any time after the person reaches 18 years of age.

This bill would instead require the court to seal all records relating to a juvenile dependency case that has been dismissed, dismissed or for which jurisdiction has terminated at the time the dismissal or termination is final, including those records held by the all child welfare agency, agencies, the court, law enforcement agency, agencies, the minors or nonminors school, schools, and any agency with which the minor was placed, unless the court finds compelling evidence that the records should not be sealed. The bill would require the proceedings of the case to be deemed never to have occurred. The bill would authorize the sealed records to be available for inspection in certain instances, including if the minor is the subject of a subsequent dependency petition. The bill would make additional conforming changes.

The bill would require the State Department of Social Services, in consultation with the Judicial Council and the County Welfare Directors Association of California, to develop and issue guidance to county child welfare departments regarding the process for identifying and inspecting records that have previously been sealed.

Existing law authorizes, except as specified, a person who is the subject of a juvenile court record, or the county probation officer, to petition the court to seal the records relating to the persons case, including records in the custody of the juvenile court and the probation officer and any other agencies, including law enforcement agencies and public officials as the petitioner alleges to have custody of the records. Existing law authorizes the petition to be filed 5 years or more after the jurisdiction of the juvenile court has terminated or, if no petition was filed, 5 years or more after the person was cited to appear before a probation officer or was taken before a probation officer or law enforcement officer, or, in any case, at any time after the person reaches 18 years of age.

This bill would instead authorize require the court to seal all records relating to a juvenile dependency case at the time the dependency petition is that has been dismissed, including those held by the child welfare agency, the court, law enforcement agency, the minors or nonminors school, and any agency with which the minor was placed. The bill would also authorize the court, at the time the petition is dismissed, to order the records destroyed. If the court does not order the records sealed at the time the dependency petition is dismissed, the bill would authorize the minor or nonminor to petition the court to seal the records and, unless the court finds compelling evidence that the records should not be destroyed, require the court to order the records sealed. placed, unless the court finds compelling evidence that the records should not be sealed. The bill would require the proceedings of the case to be deemed never to have occurred. The bill would authorize the sealed records to be available for inspection in certain instances, including if the minor is the subject of subsequently a subsequent dependency petition. The bill would require the court to order the destruction of sealed juvenile court records when the minor or nonminor attains 21 years of age. The bill would require the minor or nonminor to be provided a copy of the records, at no cost, prior to their destruction, if he or she has not previously been provided a copy. The bill would make additional conforming changes.

Existing law authorizes, except as specified, a person who is the subject of a juvenile court record, or the county probation officer, to petition the court to seal the records relating to the persons case, including records in the custody of the juvenile court and the probation officer and any other agencies, including law enforcement agencies and public officials as the petitioner alleges to have custody of the records. Existing law authorizes the petition to be filed 5 years or more after the jurisdiction of the juvenile court has terminated or, if no petition was filed, 5 years or more after the person was cited to appear before a probation officer or was taken before a probation officer or law enforcement officer, or, in any case, at any time after the person reaches 18 years of age.

This bill would instead authorize the court to seal all records relating to a juvenile dependency case at the time the dependency petition is dismissed, including those held by the child welfare agency, the court, law enforcement agency, the minors or nonminors school, and any agency with which the minor was placed. The bill would also authorize the court, at the time the petition is dismissed, to order the records destroyed. If the court does not order the records sealed at the time the dependency petition is dismissed, the bill would authorize the minor or nonminor to petition the court to seal the records and, unless the court finds compelling evidence that the records should not be destroyed, require the court to order the records sealed. The bill would authorize the sealed records to be available for inspection in certain instances, including if the minor is the subject of subsequently dependency petition. The bill would require the court to order the destruction of sealed juvenile court records when the minor or nonminor attains 21 years of age. The bill would require the minor or nonminor to be provided a copy of the records, at no cost, prior to their destruction, if he or she has not previously been provided a copy.

Date of Hearing: April 18, 2017

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 1181

Author:(Mark Stone) – As Amended Ver:April 6, 2017

As Proposed to be Amended

SUBJECT: DEPENDENT CHILDREN: SEALING OF records

KEY ISSUE: SHOULD DEPENDENCY COURT RECORDS AND INFORMATION, WHICH CONTAIN SOME OF THE MOST PERSONAL AND SENSITIVE INFORMATION ABOUT ABUSED and NEGLECTED CHILDREN, BE sealed without need to petition the court in order TO BETTER PROTECT THE PRIVACY OF THESE vulnerable YOUTH?

SYNOPSIS

In recent years, the Legislature has revised and recast rules for sealing of court records and other documents on behalf of wards of the juvenile court in order to ensure that after jurisdiction is dismissed or certain requirements are completed, the records can be sealed and the youth can move ahead with their lives as though the behavior for which they were before the juvenile court had never occurred. This sealing process allows these youth the opportunity to move forward and not be permanently tarnished for certain bad acts committed when they were children.

This bill, sponsored by the Juvenile Court Judges of California, builds upon the improvements made to the process of sealing delinquency records and applies them to dependency records, which contain some of the most personal and confidential information about abused or neglected children, including medical, mental health, and school records, as well as information about the abuse they suffered and details about their day-to-day home life and other incidents that may have occurred while they were in foster care. Under this bill, a court would be required to order the sealing of all records related to a dependency petition that has been dismissed or for which jurisdiction has terminated, unless the court finds compelling evidence that the records should not be sealed. Youths would not be required to wait for five years or until they turn 18 years of age. Instead records would be automatically sealed at the time cases were dismissed or the court's jurisdiction was terminated, unless the court were to find compelling evidence why the records should not be sealed. Records are broadly defined by the bill to ensure that all relevant information about the child is sealed. The bill provides for certain, specific and limited access to the sealed records in the future, which should ensure that, when necessary, the information in those records is accessible. This bill is supported by the Alliance for Boys and Men of Color, and there is no reported opposition.

SUMMARY: Revises the process for sealing dependency court records and, in limited instances, for subsequent inspection. Specifically, this bill:

1. Excludes, from the current dependency records sealing provision, cases in which a petition to declare a child a dependent of the juvenile court has been filed, leaving that provision to apply to youth taken into protective custody by probation or law enforcement officials or youth cited to appear before a probation officer.
2. Revises rules for sealing dependency records. Requires a court to order the sealing of all records related to a dependency petition that has been dismissed or for which jurisdiction has terminated, which must occur at the time the dismissal or termination of jurisdiction is final, unless the court finds compelling evidence that the records should not be sealed. Records include those records possessed by all child welfare agencies, law enforcement agencies, the youth's schools, any agency with which the youth was placed, and any other agency or official named in the sealing order. Provides that, thereafter, the dependency proceedings shall be deemed never to have occurred and the person whose records are subject to the sealing order may properly reply that way to any inquiry. Requires each agency and official to seal the records in its custody, as directed by the order, to advise the court of its compliance with the order, and then to seal the order.
3. Permits the person whose records are subject to the sealing order under 2), above, to petition the court to allow those named in the petition to inspect the records, and allows the court to order such inspection.
4. Allows a county child welfare agency to inspect the records of a minor if it receives an allegation that the minor or the minor's sibling or half-siblings may be abused or neglected. Allows a county child welfare agency with responsibility for a minor or the minor’s siblings or half-siblings, to inspect records that have been previously sealed for the purposes of determining appropriate placement and services, and providing reunification and family maintenance services.
5. In a subsequent dependency petition involving a minor whose records were previously sealed, allows all parties to the petition to inspect the records and allows the parties and their attorneys to receive copies of the records, which shall remain confidential.
6. In a subsequent dependency petition involving the siblings or half-siblings of a minor or nonminor whose records were previously sealed, allows a court to consider the sealed records if the records are relevant to determine if reunification services need not be provided.
7. Allows a court in a defamation case, upon a showing of good cause, to open records sealed under 2), above, and to admit those records into evidence. Requires the records to remain confidential and to be resealed on conclusion of the case.
8. If a minor's dependency records have been sealed and the minor's case has been transferred to a tribe pursuant to the Indian Child Welfare Act, requires that any sealed record be transferred to the tribal court.
9. Requires the Department of Social Services, in consultation with the Judicial Council and the County Welfare Directors Association of California, to develop and issue guidance to county child welfare agencies regarding the process for identifying and inspecting records that have been sealed pursuant to existing law and 2), above.

EXISTING LAW:

1. Provides that a juvenile court has jurisdiction to adjudicate a child a dependent of the court as the result of abuse or neglect, as specified. (Welfare & Institutions Code Section 300. Unless stated otherwise, all further statutory references are to that code.)
2. Provides that a juvenile court has jurisdiction over a child when that child has committed acts that trigger delinquency jurisdiction rendering the child a ward. (Sections 601 and 602.)
3. Allows a person or the county probation officer, in any case in which a dependency petition has been filed for the person, the person has been cited to appear before a probation officer, or the person has been taken into temporary custody, as specified, five years or more after the jurisdiction of the juvenile court has terminated as to the person, or at any time after the person has reached the age of 18, to petition the court for sealing of the records, including arrest records, relating to the person’s case, in the custody of the juvenile court, the probation officer, and any other agencies, including law enforcement agencies, and public officials who have custody of such records. Requires the court, after a hearing, to order sealed all records, except as specified. Thereafter, the proceedings shall be deemed never to have occurred, and the person may properly reply accordingly to any inquiry about the events. Requires the court to send a copy of the order to each agency and official named therein directing the agency to seal its records and five years thereafter to destroy the sealed records. Allows the person who is the subject of records to petition the court to permit inspection of the records. Except as provided, provides that such records shall not be open to inspection. (Section 389 (a).)
4. Requires a court, five years after a juvenile court record has been sealed, to order the destruction of any sealed juvenile court record unless for good cause the court determines that the juvenile court record shall be retained. Requires any other agencies in possession of sealed records to destroy their records five years after the records were ordered sealed. (Section 389 (c).)
5. Provides that five years or more after the jurisdiction of the juvenile court has terminated over a person adjudged a ward of the court or after a minor appeared before a probation officer, or, in any case, at any time after the person has reached the age of 18, the person or county probation officer, with specified exceptions, may petition the juvenile court for sealing of records, including arrest records, relating to the person’s case, in the custody of the juvenile court, the probation officer, or any other agency or public official. States that once the court has ordered the person’s records sealed, the proceedings in the case shall be deemed never to have occurred, and the person may reply accordingly to any inquiry about the events. Prohibits, notwithstanding any other provision of law, the court from ordering a person's records sealed in any case in which the person has been found to have committed an offense for which certain minors could be tried in adult court under specified circumstances. Permits the court to access a file that has been sealed for the limited purpose of verifying the prior jurisdictional status of the ward who is petitioning the court to resume its jurisdiction, as specified. (Section 781.)
6. Provides that if a minor satisfactorily completes an informal program of supervision or probation, as provided, the juvenile court petition shall be dismissed and the court shall order all records pertaining to the petition and in the possession of the court, law enforcement, probation, or the Department of Justice sealed. Requires all agencies named in the court order to seal their records, as specified. States that once the court has ordered the person’s records sealed, the proceedings in the case shall be deemed never to have occurred, and the person may reply accordingly to any inquiry about the events. (Section 786.)
7. Provides that any person, who was under the age of 18 when he or she was arrested for a misdemeanor, may petition the court in which the proceedings occurred or, if there were no court proceedings, the court in whose jurisdiction the arrest occurred, for an order sealing the records in the case, including any records of arrest and detention, in certain circumstances. (Penal Code Section 851.7.)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: In recent years, the Legislature has revised and recast rules for sealing of court records and other documents regarding wards of the juvenile court in order to ensure that after jurisdiction is dismissed or the wards have successfully completed certain requirements, their records can be sealed and they may move ahead with their lives as though the behavior for which they were before the juvenile court had never occurred. (See AB 666 (Stone), Chap. 368, Stats. 2015; SB 1038 (Leno), Chap. 249, Stats. 2014; 1006 (Yamada), Chap. 269, Stats. 2013.) Sealing these records allows youth the opportunity to move forward with their lives and not be permanently tarnished by certain bad acts they committed when they were children. An important caveat to this general rule is that the sealing provisions described above do not apply to certain felonies. (Sections 707 (b), 781 (a)(1)(D), 786 (d).)

This bill seeks to update and revise the sealing of dependency court records, similar to the model for the sealing of delinquency records, in order to automatically protect the very personal information contained in those records and allow former abused and neglected youth to move forward with their lives without fear that the personal and confidential information in the records could be viewed or used against them. In support of the bill, the author writes:

Record sealing for dependent children has been law since 1976. The current statute is out of date and unworkable. Current law parallels WIC §781 (sealing for delinquents), refers to probation officers (no longer involved in dependency proceedings), and is rarely used by the children it was intended to protect. A child’s dependency file is one of the most sensitive documents held by the Superior Court. It contains medical, educational, and mental health reports, developmental disability information, therapist reports, and potentially hurtful statements by parents, caregivers, even social workers. A dependent child’s life is documented in the file, with all the problems for an abused/neglected listed almost on a daily basis.

Children have a right to keep this material confidential, but the current statute does not provide that right. Automatic sealing will provide that protection. Under AB 1181 courts will be required to seal all records related to a juvenile dependency case at the time the dependency petition is dismissed. This legislation will make the sealing process workable, permit children to have the records they need for benefits offered to former foster youth, and prevent their records from being available to potential employers and schools.

Complex Rules for Sealing and Destruction of Juvenile Records Today: The existing statutory scheme for the sealing and destruction of juvenile records is a complex and convoluted labyrinth of rules and requirements. First, for youth who have been adjudicated wards of the juvenile court, the youth, or the county probation officer, can seek to have his or her juvenile records, in the custody of the juvenile court, the probation officer, or any other agency or public official, sealed, but must wait until five years after the court has terminated jurisdiction over the youth, or until after the youth turns 18 years of age, subject to specified exceptions. (Section 781.) If the individual just appeared before a probation officer, but was not adjudicated a ward of the court, he or she may request those records to be sealed after turning 18 years of age. Records cannot be sealed in any case in which the person has been found to have committed an offense for which he or she could be tried in adult court, under specified circumstances. Once the court has ordered the person’s records sealed, the proceedings in the case are deemed never to have occurred, and the individual may reply accordingly to any inquiry about the events. This process has several drawbacks for youth trying to move forward with their lives. Most notably, this process requires the youth to wait, whether for five years or until age 18, and then file a petition with the court to request that the records be sealed.

Three years ago, the Legislature sought to ease the burden for some of these youth by requiring the automatic dismissal of juvenile petitions and sealing of records, in cases where juvenile offenders successfully complete probation. (SB 1038 (Leno), Chap. 249, Stats. 2014; Section 786.) Then, a year later, AB 666 (Stone), Chap. 368, Stats. 2015, improved that process by, among other things, expanding the types of records that must be sealed and detailing the sealing process and requirements in order to make it more effective. These changes helped open the door to school and work for youth who successfully complete the terms of their probation.

Of particular relevance to the current legislation, Section 389 now addresses the sealing of dependency records, as well as some delinquency records. That section allows, in any case in which a dependency petition has been filed or a youth has been cited to appear before a probation officer or has been taken into temporary custody, five years or more after the jurisdiction of the juvenile court has terminated, or at any time after the youth has reached the age of 18 years, the youth or the county probation officer to petition the court for sealing of the records, including records of arrest and relating to the person’s case, in the custody of the juvenile court, the probation officer, or any other agencies, including law enforcement agencies. The court is then required, after a hearing, to order sealed all records, except as specified. Five years after juvenile court records have been sealed, the court is then required to order the destruction of any sealed juvenile court records, unless for good cause the court determines that the juvenile court record must be retained. Like Section 781, this process has several drawbacks for youth trying to move forward with their lives. Most notably, this process requires the youth to wait, whether for five years or until age 18, and then file a petition (or hope that the probation officer files) with the court to request that the records be sealed. As a result, many of these records are never sealed.

In addition to the above provisions in the Welfare & Institutions Code, the Penal Code also permits the sealing of certain juvenile records. (Penal Code Section 851.7.)

This Bill Clarifies and Simplifies the Process of Sealing Dependency Records: This bill builds upon the improvements made to the sealing of delinquency records and applies them to the sealing of dependency records, which contain some of the most personal and confidential information about abused or neglected children, including medical, mental health, and school records, as well as information about the abuse the children suffered and details about their day-to-day home life and other incidents in foster care. If any records should be sealed to protect children, it is these records.

This bill does just that by revising the existing statutory scheme regarding the sealing of dependency records. First, this bill requires a court to order the sealing of all records related to a dependency petition that has been dismissed or for which jurisdiction has terminated, unless the court finds compelling evidence that the records should not be sealed. Youths would not be required to wait for five years, or until they turn 18 years of age, in order to have these records sealed. Instead records would automatically be sealed at the time the case is dismissed or the court's jurisdiction terminates, unless the court finds compelling evidence why the records should not to sealed. Records broadly include those records possessed by all child welfare agencies, law enforcement agencies, the youth's schools, any agency with which the youth was placed, and any other agency or official named in the sealing order. These provisions ensure that records will be automatically and timely sealed and that all relevant records will be included in the order. Like the other sealing statutes, this one provides that, after sealing, the dependency proceedings will be deemed never to have occurred and the person whose records are subject to the sealing order may properly reply that way to any inquiry. Each agency and official must seal the records in their custody, as directed by the order, and then advise the court of their compliance with the order.

This bill allows several, specific options for records to be reviewed, even after sealing. First, the bill permits the person whose records are sealed to petition the court to allow those named in the petition to inspect the records and allows the court to order such inspection. It also allows a county child welfare agency to inspect the records of a minor if it receives an allegation that the minor or the minor's sibling may be abused or neglected. A county child welfare agency with responsibility for the minor or the minor’s siblings may also inspect records that have been previously sealed for the purposes of determining appropriate placement and services and providing reunification and family maintenance services. If a subsequent dependency petition is filed involving a minor whose records were previously sealed, this bill allows all parties to the petition to inspect the records and allows the parties and their attorneys to receive copies of the records, though the records must remain confidential. Additionally, in a subsequent dependency petition involving siblings of a youth whose records were previously sealed, a court may consider the sealed records if the records are relevant to determine whether or not reunification services should be provided. Finally, like existing law, this bill allows a court in a defamation case, upon a showing of good cause, to open records that have been sealed and for those records to be admitted into evidence, provided that the records remain confidential and are resealed upon conclusion of the case. These exceptions to the general sealing rule should help ensure that, when clearly necessary, information in the files is accessible.

To help make the process work smoothly for county child welfare agencies, the bill requires the Department of Social Services, in consultation with the Judicial Council and the County Welfare Directors Association of California, to develop and issue guidance to county child welfare agencies regarding the process for identifying and inspecting records that have been sealed.

The Bill's Sponsor Notes That the Bill Has Been Carefully Amended to Ensure Limited Access to Sealed Dependency Records, When Necessary: The Juvenile Court Judges of California, the bill's sponsor, understands both the confidential and personal nature of the information contained in dependency files, as well as the potential need for even these very private files to be reviewed later, in some limited instances:

Working with stakeholders, AB 1181 has been narrowly crafted to allow retention of, and limited access to, records for access when requested by the former foster youth or when needed by specified agencies when considering future placements, adoptions, services for youth and if applicable, siblings and half-siblings of the youth, and otherwise where those records are necessary to ensure safety and other matters. The bill is also appropriately deferential to federal guidelines relevant to foster youth and former foster youth. . . .

These youth are our society’s most vulnerable. Data show their future is problematic at best. AB 1181 will help them.

REGISTERED SUPPORT / OPPOSITION:

Support

Juvenile Court Judges of California (sponsor)

Alliance for Boys and Men of Color

Opposition

None on file

Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334