Proposal to amend Juvenile Law: California Rules of Court 5.552. Confidentiality of records (§§ 827, 828)

 

Pursuant to California Rules of court 10.21, the members of the public hereby present a proposal to amend the juvenile law California rules of court 5.552 confidentiality of records for all juvenile cases in the State of California. Strong public policy favors the settlement of disputes and the public is notifying the policy making organization of this state that that there is a considerable controversy in the application of the confidentiality statute and the ability to obtain juvenile records that the applicant has the statutory right to obtain.

The scope of discretion always resides in the particular law being applied by the court, i.e., in the `”legal principles governing the subject of [the] action ….”‘” (Nakamura v. Parker (2007) 156 Cal.App.4th 327, 337 [67 Cal.Rptr.3d 286], citing City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297 [255 Cal.Rptr. 704] and County of Yolo v. Garcia (1993) 20 Cal.App.4th 1771, 1778 [25 Cal.Rptr.2d 681] [“range of judicial discretion is determined by analogy to the rules contained in the general law and in the specific body or system of law in which the discretionary authority is granted”].

The guidelines related to the dissemination of juvenile court records to people that are entitled to the records without notice or court order are found in Welfare and Institution code sections 827 and 828 and California Rules of Court, rule 5.552, (hereafter Rule 5.552). Section 827 covers who has the right to access and inspect confidential juvenile records and how those records should be released. Specifically, section 827, subdivisions (a)(1)(A) through (L), delineate the categories of persons having the right to inspect juvenile records without a court order. Section 827, subdivision (a)(1)(P), provides a juvenile case file may be inspected by “[a]ny other person who may be designated by court order of the judge of the juvenile court upon filing a petition.”

Rule 5.552(a), concerning the “confidentiality of records[,]” defines the juvenile case file as including: “(1) All documents filed in a juvenile court case; [¶] . . . [¶] (4) Documents relating to a child concerning whom a petition has been filed in juvenile court that are maintained in the office files of probation officers, social workers of child welfare services programs, and [Court Appointed Special Advocate] CASA volunteers; [¶] . . . [¶] (6) Documents, video or audio tapes, photographs, and exhibits admitted into evidence at juvenile court hearings.”

Rule 5.552(b), defines the General provisions as to who may inspect, receive and copy the juvenile case on a non-noticed basis without an order of the juvenile court and includes the defined parties as:

(A) Court personnel;
(B) The district attorney, a city attorney, or a city prosecutor authorized to prosecute criminal or juvenile cases under the law;
(C) The child who is the subject of the proceeding;
(D) The child’s parents;
(E) The child’s guardians;
(F) The attorneys for the parties, including any trial court or appellate attorney representing a party in the juvenile proceeding or related appellate proceeding;
(G) Judges, referees, other hearing officers, probation officers, and law enforcement officers who are actively participating in criminal or juvenile proceedings involving the child;
(H) The county counsel, city attorney, or any other attorney representing the petitioning agency in a dependency action;
(I) Members of child protective agencies as defined in Penal Code section 11165.9; and
(J) The California Department of Social Services in order to carry out its duty to oversee and monitor county child welfare agencies, children in foster care or receiving foster-care assistance, and out- of-state placements.
(2) The following individuals and entities may inspect the juvenile case file without a court order and may receive a copy of the juvenile case file pursuant to a court order:
(A) All persons and entities listed in Welfare and Institutions Code sections 827 and 828 who are not listed in (b)(1) above; and
(B) An Indian child’s tribal representative if the tribe has intervened in the child’s case.

Rule 5.552(c) provides, “With the exception of those persons permitted to inspect juvenile court records without court authorization under sections 827 and 828, every person or agency seeking to inspect or obtain juvenile court records must petition the court for authorization using Petition for Disclosure of Juvenile Court Records (form JV-570).” Rule 5.552(d) and (e) describe the notice and procedures that must be followed for petitions.

Rule 5.552(b) does not describe the application and procedures  that must be followed for persons that qualify under subdivision b to obtain the non-noticed right to inspect and copy the requested juvenile records.

Section 827 sets the current parameters of this state’s policy with respect to the confidentiality of juvenile records and governs the release of such records. (In re Keisha T. (1995) 38 Cal.App.4th 220, 229 ; see also T.N.G. v. Superior Court (1971) 4 Cal.3d 767, 778; In re Tiffany G. (1994) 29 Cal.App.4th 443, 451; In re Michael B. (1992) 8 Cal.App.4th 1698, 1706; Lorenza P. v. Superior Court (1988) 197 Cal.App.3d 607, 610-611; Navajo Express v. Superior Court (1986) 186 Cal.App.3d 981, 985.) The juvenile court has both “the sensitivity and expertise” to make decisions about access to juvenile records and is in the best position to consider any other statutes or policies which may militate against access. (See In re Maria V. (1985) 167 Cal.App.3d 1099, 1103; In re Keisha T, supra, 38 Cal.App.4th at pp. 229-230; T.N.G. v. Superior Court, supra, 4 Cal.3d at pp. 778, 781.)

Though it is still the Legislature’s intent “that juvenile court records, in general, should be confidential” (§ 827, subd. (b)), this policy has become less absolute, and the lawmakers in the recent past have authorized significant departures from it. For example, since 1992 a juvenile court may permit, upon good cause shown, “any … person” to inspect the records of a juvenile dependent.(§ 827, subd. (a)(1)(M), as amended by Stats. 1994, ch. 1018, § 1; Stats. 1994, ch. 453, § 14; Stats. 1993, ch. 589, § 193; Stats. 1992, ch. 148, § 1.) Newspapers and other representatives of the press qualify as “persons” under this provision. (See In re Keisha T., supra, 38 Cal.App.4th 220.)

In addition, certain specific categories of individuals may inspect juvenile records without first obtaining a court order. As of and after 1994, the list includes city attorneys and prosecutors who handle criminal or juvenile cases, judges, referees, hearing officers, and law enforcement officers actively participating in criminal or juvenile proceedings involving the minor, the superintendent of the school district where the minor is enrolled, members of child protective agencies, children’s multidisciplinary teams, and persons or agencies providing treatment or supervision of the minor. (§ 827, subd. (a)(1), as amended by Stats. 1994, ch. 1019, § 4.)

In cases not governed by subdivision (a)(2) a juvenile court has broad and exclusive authority to determine whether, and to what extent, to grant access to confidential juvenile records, (In re R. G. (2000) 79 Cal. App. 4th 1408 … [79 Cal. App. 4th 1413]; In re Keisha T., supra, 38 Cal.App.4th at pp. 225-226, 240 [court balanced the privacy interests of children with that of the press, and concluded disclosure of information to the press would promote “public awareness and monitoring of the juvenile court system[]”].) “‘The juvenile court has both the “sensitivity and expertise” to make this determination. [Citation.]’” (In re Elijah S. (2005) 125 al.App.4th 1532, 1542.)

Currently, in the State of California, the statute does not provide the format of the non-noticed application to the court for individuals qualified under Rule 5.552 subdivision b to inspect and obtain copies of juvenile records without an order nor does it specify the time frame for the court to comply with the request. The terminology of the statute, (inspect and copy), suggests that it applies as a discovery request and demand for the production of documents.

Several Superior Courts in this state have developed a policy of prohibiting that qualified parties under Rule 5.552 subdivision b have access to their entire juvenile records including records that are sealed such as a medical records, evaluations and police reports. The scope of the accessibility of records has already been addressed pursuant to Rule 5.552(a), concerning the “confidentiality of records[,]” which defines the juvenile case file as including: “(1) All documents filed in a juvenile court case; [¶] . . . [¶] (4) Documents relating to a child concerning whom a petition has been filed in juvenile court that are maintained in the office files of probation officers, social workers of child welfare services programs, and [Court Appointed Special Advocate] CASA volunteers; [¶] . . . [¶] (6) Documents, video or audio tapes, photographs, and exhibits admitted into evidence at juvenile court hearings,” and the imposition of additional requirements by a superior court in the form of a noticed request subject to a hearing defeats the legislative mandate of the statute to obtain access to all judicial records defined by the statute.

California law already provides a process for discovery requests including the demand for the production of documents and other tangible items defined pursuant to CCP § 2031.210-2031.320.

The non-noticed intent of the statute under which qualified persons may obtain juvenile records under Rule 5.552 subdivision (b) suggests that the statute intends to waive the objection process for these qualified individuals leaving the statutory time frame of the demand as the intent to provide the records in a timely manner pursuant to CCP § 2031.260 which mandates a time frame of thirty days to comply with the request.

The public is requesting that the judicial council consider the above proposal and adopt a uniform formal policy for all Superior Courts in California for the non-noticed application of qualified individuals pursuant to California rules of court 5.552 (b) to inspect and obtain copies of all the juvenile records defined pursuant to California rules of court 5.552 (a) in a time period of thirty days from the date of the application. 

 

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