There is a Dual Jurisdiction Problem in California


In California, the state assumes parental authority over a minor child if the court finds by clear and convincing evidence that the child’s current guardian is “unfit,” and continued placement in the home is no longer in the child’s best interest.  Once the state becomes the child’s parental authority by law, the child is declared a “dependent of the state.” This declaration triggers a duty in the court to find the child a suitable replacement home, and to provide her with the care and attention she deserves.

The dual calendar issue in juvenile justice arises when a dependant child of the state commits a crime.  More specifically, California law follows a “separate jurisdiction” approach to dual calendar cases. Under this approach, once a minor’s case falls within the dual jurisdiction of the court, the judge will hold a §241.1 hearing to determine under which system the case should remain.  The judge is faced with the decision of whether to handle the child’s case under the dependency system, or alternatively to handle it under the delinquency system.  This decision creates the “dual calendar issue” because essentially the judge is forced to choose between the two systems, which consequentially forces the judge to choose between the benefits each system has to offer.  For example, if the delinquency court retains jurisdiction of the case, the dependency case and all the services provided by child welfare services are terminated.  This is completely contrary to the legislative intent for establishing a juvenile justice system in the first place.  The system was built around the notion of doing things only if they are “in the best interest of the child.”  The foundation of the juvenile justice system is based on the idea of rehabilitation, not retribution.   Terminating a child’s welfare benefits as a consequence of committing a crime is not in the child’s best interest.  Children are entitled to the most efficient, well-rounded approach to their rehabilitation and reunification efforts. If the judge is forced to choose between the two systems, the child will automatically lose the necessary treatment services unique to either system. For example, if the judge decides to handle the case under the delinquency system, the child will benefit from the structure and discipline of that system; however the child will automatically loose all the benefits she receives under the dependency system. On the other hand, if the judge decides to handle the case under the dependency system, the child will retain her child welfare benefits, but she will lose the structure and discipline the delinquency system has to offer.  Ultimately, the child always loses under a separate jurisdiction approach. 

Alternatively, California should follow a “concurrent jurisdiction” approach. Under this approach, the child’s case may be heard under the dependency system and the delinquency system simultaneously. Cases heard under the concurrent jurisdiction approach have more successful outcomes than those heard under an alternative approach because court procedure allows the child to receive the benefits of both the dependency and delinquency systems.  For example, if a dependency child commits a crime, she will continue to be treated by child welfare services, while simultaneously being held accountable for her actions.  This includes psychological, emotional, and behavioral therapy, along with any detention or incarceration decisions determined by the severity of the crime. Furthermore, states that follow a concurrent jurisdiction approach focus on community based alternatives to secure confinement.  States provide at-risk youth with continued support in areas such as school, mental and emotional health, social relationships, and family harmony.  The goal with this approach is to treat the child in the least restrictive setting that is consistent with public safety.

In California, the laws governing dual jurisdiction cases needs to be reformed.  The State needs to enact a statewide mandate that governs how these cases are handled.  Court procedure needs to be uniform across all counties.  Every agency involved in the process needs to be on the same page, and held accountable for their roles and responsibilities in each child’s life.  This is the only way a child will receive the care and attention she deserves once she is forcibly taken away from her family.

About the Author:
Jessica R. Springer is a law student at the University of San Diego School of Law. She is currently taking part in the Children’s Advocacy Policy Clinicand is working on issues related to California’s dual jurisdiction system.

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