BILL NUMBER: SB 926	ENROLLED
	BILL TEXT

	PASSED THE SENATE  JULY 11, 2011
	PASSED THE ASSEMBLY  JUNE 27, 2011
	AMENDED IN ASSEMBLY  JUNE 21, 2011
	AMENDED IN SENATE  APRIL 14, 2011

INTRODUCED BY   Senator Runner

                        FEBRUARY 18, 2011

   An act to amend Section 317 of the Welfare and Institutions Code,
relating to dependent children.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 926, Runner. Dependent children: relative placements:
disclosure.
   Existing law requires a court to appoint counsel for a child who
is not represented by counsel in dependency proceedings, except as
specified. Counsel for the child is required to investigate the
interests of the child beyond the scope of the juvenile proceeding,
and report to the court other interests of the child that may require
protection in other administrative or judicial proceedings. Existing
law requires that in any case in which a child is removed from the
physical custody of his or her parents due to abuse or neglect,
preferential consideration be given to a request by a relative of the
child for placement of the child with the relative.
   This bill would authorize counsel for the child or counsel's agent
to disclose to a relative who is being assessed for the possibility
of placement of the child the fact that the child is in custody and
other related information, as specified.
    The bill would state that the changes made by this measure are
declaratory of existing law, and would also make technical,
nonsubstantive changes to those provisions.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 317 of the Welfare and Institutions Code is
amended to read:
   317.  (a) (1) When it appears to the court that a parent or
guardian of the child desires counsel but is presently financially
unable to afford and cannot for that reason employ counsel, the court
may appoint counsel as provided in this section.
   (2) When it appears to the court that a parent or Indian custodian
in an Indian child custody proceeding desires counsel but is
presently unable to afford and cannot for that reason employ counsel,
the provisions of subsection (b) of Section 1912 of the federal
Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.) and Section
23.13 of Title 25 of the Code of Federal Regulations are applicable.
   (b) When it appears to the court that a parent or guardian of the
child is presently financially unable to afford and cannot for that
reason employ counsel, and the child has been placed in out-of-home
care, or the petitioning agency is recommending that the child be
placed in out-of-home care, the court shall appoint counsel for the
parent or guardian, unless the court finds that the parent or
guardian has made a knowing and intelligent waiver of counsel as
provided in this section.
   (c) If a child is not represented by counsel, the court shall
appoint counsel for the child, unless the court finds that the child
would not benefit from the appointment of counsel. The court shall
state on the record its reasons for that finding. A primary
responsibility of counsel appointed to represent a child pursuant to
this section shall be to advocate for the protection, safety, and
physical and emotional well-being of the child. Counsel may be a
district attorney, public defender, or other member of the bar,
provided that he or she does not represent another party or county
agency whose interests conflict with the child's interests. The fact
that the district attorney represents the child in a proceeding
pursuant to Section 300 as well as conducts a criminal investigation
or files a criminal complaint or information arising from the same or
reasonably related set of facts as the proceeding pursuant to
Section 300 is not in and of itself a conflict of interest. The court
may fix the compensation for the services of appointed counsel. The
appointed counsel shall have a caseload and training that ensures
adequate representation of the child. The Judicial Council shall
promulgate rules of court that establish caseload standards, training
requirements, and guidelines for appointed counsel for children and
shall adopt rules as required by Section 326.5 no later than July 1,
2001.
   (d) Counsel shall represent the parent, guardian, or child at the
detention hearing and at all subsequent proceedings before the
juvenile court. Counsel shall continue to represent the parent,
guardian, or child unless relieved by the court upon the substitution
of other counsel or for cause. The representation shall include
representing the parent, guardian, or the child in termination
proceedings and in those proceedings relating to the institution or
setting aside of a legal guardianship. On and after January 1, 2012,
in the case of a nonminor dependent, as described in subdivision (v)
of Section 11400, no representation by counsel shall be provided for
a parent.
   (e) (1) Counsel shall be charged in general with the
representation of the child's interests. To that end, counsel shall
make or cause to have made any further investigations that he or she
deems in good faith to be reasonably necessary to ascertain the
facts, including the interviewing of witnesses, and shall examine and
cross-examine witnesses in both the adjudicatory and dispositional
hearings. Counsel may also introduce and examine his or her own
witnesses, make recommendations to the court concerning the child's
welfare, and participate further in the proceedings to the degree
necessary to adequately represent the child.
   (2) If the child is four years of age or older, counsel shall
interview the child to determine the child's wishes and assess the
child's well-being, and shall advise the court of the child's wishes.
Counsel shall not advocate for the return of the child if, to the
best of his or her knowledge, return of the child conflicts with the
protection and safety of the child.
   (3) Counsel shall investigate the interests of the child beyond
the scope of the juvenile proceeding, and report to the court other
interests of the child that may need to be protected by the
institution of other administrative or judicial proceedings. Counsel
representing a child in a dependency proceeding is not required to
assume the responsibilities of a social worker, and is not expected
to provide nonlegal services to the child.
   (4) Counsel for the child and counsel's agent may, but are not
required to, disclose to an individual who is being assessed for the
possibility of placement pursuant to Section 361.3 the fact that the
child is in custody, the alleged reasons that the child is in
custody, and the projected likely date for the child's return home,
placement for adoption, or legal guardianship. Nothing in this
paragraph shall be construed to prohibit counsel from making other
disclosures pursuant to this subdivision, as appropriate.
   (5) Nothing in this subdivision shall be construed to permit
counsel to violate a child's attorney-client privilege.
   (6) The changes made to this subdivision during the 2011-12
Regular Session of the Legislature by the act adding paragraphs (4)
and (5) are declaratory of existing law.
   (7) The court shall take whatever appropriate action is necessary
to fully protect the interests of the child.
   (f) Either the child or counsel for the child, with the informed
consent of the child if the child is found by the court to be of
sufficient age and maturity to consent, which shall be presumed,
subject to rebuttal by clear and convincing evidence, if the child is
over 12 years of age, may invoke the psychotherapist-client
privilege, physician-patient privilege, and clergyman-penitent
privilege. If the child invokes the privilege, counsel may not waive
it, but if counsel invokes the privilege, the child may waive it.
Counsel shall be the holder of these privileges if the child is found
by the court not to be of sufficient age and maturity to consent.
For the sole purpose of fulfilling his or her obligation to provide
legal representation of the child, counsel shall have access to all
records with regard to the child maintained by a health care
facility, as defined in Section 1545 of the Penal Code, health care
providers, as defined in Section 6146 of the Business and Professions
Code, a physician and surgeon or other health practitioner, as
defined in former Section 11165.8 of the Penal Code, as that section
read on January 1, 2000, or a child care custodian, as defined in
former Section 11165.7 of the Penal Code, as that section read on
January 1, 2000. Notwithstanding any other law, counsel shall be
given access to all records relevant to the case that are maintained
by state or local public agencies. All information requested from a
child protective agency regarding a child who is in protective
custody, or from a child's guardian ad litem, shall be provided to
the child's counsel within 30 days of the request.
   (g) In a county of the third class, if counsel is to be provided
to a child at the county's expense other than by counsel for the
agency, the court shall first utilize the services of the public
defender prior to appointing private counsel. Nothing in this
subdivision shall be construed to require the appointment of the
public defender in any case in which the public defender has a
conflict of interest. In the interest of justice, a court may depart
from that portion of the procedure requiring appointment of the
public defender after making a finding of good cause and stating the
reasons therefor on the record.
   (h) In a county of the third class, if counsel is to be appointed
to provide legal counsel for a parent or guardian at the county's
expense, the court shall first utilize the services of the alternate
public defender prior to appointing private counsel. Nothing in this
subdivision shall be construed to require the appointment of the
alternate public defender in any case in which the public defender
has a conflict of interest. In the interest of justice, a court may
depart from that portion of the procedure requiring appointment of
the alternate public defender after making a finding of good cause
and stating the reasons therefor on the record.