(a) Within five days after the receipt of an inmate by the Department of Corrections who has already applied for admission to a program, or of her application for admission to a program, whichever is later, the department shall give notice of her application to the child’s current caretaker or guardian, if any, and if it has not already been notified pursuant to Section 3415, the appropriate local social services agency that conducts investigations for child neglect and dependency hearings.
(b) The department and the individuals and agencies notified shall have five days from the date of notice to decide whether or not to challenge the appropriateness of the applicant’s entry into the program. Lack of a petition filed by that time shall result in a presumption that the individuals and agencies notified do not challenge the appropriateness of the applicant’s entry into the program.
(c) The local agency which has been notified pursuant to Section 3415 shall not initiate the process of considering whether or not to file until after the sentencing court has sentenced the applicant.
(d) The appropriate local agency that conducts investigations for child neglect and dependency hearings, the Department of Corrections, and the current guardian or caretaker of the child, shall have the authority to file for a fitness proceeding against the mother after the mother has applied in writing to participate in the program.
(e) The determination of whether or not to file shall be based in part on the likelihood of the mother being a fit parent for the child in question both during the program and afterwards. Program content shall be taken into account in this determination. There shall be a presumption affecting the burden of producing evidence in favor of filing for a fitness proceeding under the following circumstances:
(1) The applicant was convicted of one or more of the following violent felonies:
(A) Murder.
(B) Mayhem.
(C) Aggravated mayhem.
(D) Kidnapping as defined in Section 207 or 209.
(E) Lewd acts on a child under 14 as defined in Section 288.
(F) Any felony in which the defendant inflicts great bodily injury on a person other than accomplices which has been alleged and proven.
(G) Forcible rape in violation of subdivision (2), (3), or (4) of Section 261.
(H) Sodomy by force, violence, duress, menace, or threat of great bodily injury.
(I) Oral copulation by force, violence, duress, menace, or threat of great bodily injury.
(2) The applicant was convicted of child abuse in the current or any proceeding.
(f) Fitness petitions shall be resolved in the court of first instance as soon as possible for purposes of this section. Given the need to place the child as soon as possible, the first determination by the court as to the applicant’s fitness as a mother shall determine her eligibility for the program for the current application. Outcomes of appeals shall not affect eligibility.
(Amended by Stats. 1994, Ch. 224, Sec. 8. Effective January 1, 1995.)
Last modified: October 25, 2018