BILL ANALYSIS                                                                                                                                                                                                    Ó






                             SENATE JUDICIARY COMMITTEE
                             Senator Noreen Evans, Chair
                              2011-2012 Regular Session


          SB 926 (Runner)
          As Amended April 14, 2011
          Hearing Date: April 26, 2011
          Fiscal: No
          Urgency: No
          EDO  
                    

                                        SUBJECT
                                           
                 Dependent Children: Relative Placements: Disclosure

                                      DESCRIPTION  

          Existing law requires that when a child is removed from the 
          physical custody of his or her parents due to abuse or neglect, 
          preference be given to a request by a relative of the child for 
          placement with the relative.  Existing law requires the court to 
          authorize the county social worker, in assessing relatives for 
          the possibility of placement, to disclose limited case 
          information. This bill would additionally authorize the court to 
          allow an attorney for the child to disclose limited case 
          information to the relative when assessing the relative for the 
          possibility of placement.

                                      BACKGROUND  

          When a child is removed from the physical custody of his or her 
          parents due to abuse or neglect, the child is taken into the 
          temporary custody of the county.  A social worker is tasked with 
          identifying and locating all adult relatives within 30 days of 
          the child being removed from the parent's custody and assessing 
          potential relatives for placement.  During the investigation, 
          the social worker is authorized by the court to disclose certain 
          facts to relatives requesting custody of the child relating to 
          why the child is in custody and when or if the child would be 
          returned to his or her parents.  

          At the initial petition hearing, the social worker reports to 
          the court the reasons why the child was removed and if further 
          detention is required.  If the court finds it appropriate, an 
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          attorney may be appointed to represent the child during the 
          court proceedings. The court considers several factors when 
          determining whether or not the child should be returned to the 
          parent's custody.  If the child is not returning to the custody 
          of his or her parents then preference is given to adult 
          relatives of the child for placement.  Relatives are given 
          preference under existing law in an effort to aid in the 
          reunification process between the child and his or her parents.  


          This bill would allow the attorney who is representing the child 
          to disclose limited case information to relatives who are being 
          assessed for the possibility of placement of the child with that 
          relative. 

                                CHANGES TO EXISTING LAW
           
           Existing law  provides that when a child is removed from the 
          physical custody of his or her parents, preference be given to a 
          request by a relative of the child for placement with the 
          relative.  (Welf. & Inst. Code Sec. 361.3(a).)

           Existing law  provides that the county social worker should 
          consider several factors when determining placement of the 
          child, including the best interest of the child and the wishes 
          of the parent, the relative, and child, if appropriate.  (Welf. 
          & Inst. Code Sec. 361.3(a)(1)-(8).)

           Existing law  provides for the court to authorize a county social 
          worker while assessing relatives for the possibility of 
          placement to disclose to the relative, (1) the fact that the 
          child is in custody, (2) the alleged reasons for the custody, 
          and (3) the projected likely date for the child's return home or 
          placement for adoption or legal guardianship. (Welf. & Inst. 
          Code Sec. 361.3(a)(8).) 

           Existing law  provides that the court shall appoint counsel for a 
          child removed from his or her parent's custody unless the court 
          determines that the child would not benefit from appointment of 
          counsel.  (Welf. & Inst. Code Sec. 317(c).)

           Existing law  provides that if an attorney is appointed to 
          represent the child, the primary responsibility of the attorney 
          is to advocate for the protection, safety, and physical and 
          emotional well-being of the child. (Welf. & Inst. Code Sec. 
          317(c).)
                                                                      



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           Existing law  provides that the attorney for the child is charged 
          with representation of the child's interest and in order to 
          protect the child's interest, shall conduct further 
          investigations as he or she deems necessary and if necessary 
          beyond the scope of the proceeding.  (Welf. & Inst. Code Sec. 
          317(e).)

           Existing law  provides that the attorney for the child is 
          authorized to inspect the child's case file. (Welf. & Inst. Code 
          Sec. 827.)

           Existing law  provides that a privilege exists between a client 
          and his or her attorney and the client and the attorney are both 
          holders of the privilege. This means that both the client and 
          the attorney may refuse to disclose and may prevent others from 
          disclosing confidential communications between the client and 
          his or her attorney.  (Evid. Code Sec. 954.)

           This bill  would authorize the court to allow, in addition to the 
          county social worker, the child's attorney to disclose to the 
          relative, (1) the fact that the child is in custody, (2) the 
          alleged reasons for the custody, and (3) the projected likely 
          date for the child's return home or placement for adoption or 
          legal guardianship.
           
                                       COMMENT
           
          1.  Stated need for the bill 
          
          The author writes:
          
            Currently, different counties and different courts operate 
            under a system of local rules and standing court orders to 
            ensure that the parties appearing in dependency proceedings 
            are fully and effectively represented.  While local rules and 
            standing orders often permit attorneys and their agents to 
            disclose limited case information to interested non-parties 
            seeking placement of the subject child or a role in their 
            life, such rules and orders while well intentioned, remain of 
            questionable validity given the premise that rules cannot be 
            inconsistent with the law. 

            Counsel for a child must be able to fully and independently 
            from the county, investigate a proposed relative or 
            non-related extended family member's knowledge base about the 
                                                                      



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            child, the parent and the allegations.  If the proposed 
            caretaker purports to not know why a child was removed or is 
            in need of care, or indicates a faulty understanding of the 
            basis for removal and the issues facing the parent and family, 
            it is important in the course of this mandated independent 
            investigation by the child's law firm, that the proposed 
            caretaker be presented with the alleged facts of the case, 
            that they grapple with the gravity of the situation and 
            develop a plan of how they will ensure the protection and 
            wellbeing of the child, as well as set any needed boundaries 
            with the parent, and facilitate the court ordered plan for the 
            child.

          In support of the bill, the Executive Committee of the Family 
          Law Section of the State Bar (FLEXCOM) writes "although it is 
          not explicitly stated, current law appears to prohibit legal 
          counsel and their agents from disclosing confidential case 
          related information in the course of assessing relatives and 
          non-related extended family members for possible placement or 
          other involvement in the life of the child . . . this bill 
          clarifies what the state law is and, in the process, ensures 
          uniformity in family law rules and practice throughout this 
          state.  It also ensures that everyone is following the better 
          reasoned interpretation of the existing law, which, in turn, 
          allows for dependent children to have better representation."

          2.  Authorizing attorneys to disclose limited case information to 
            a relative when assessing that relative for placement of the 
            child  

          Under existing law, the county social worker is authorized by 
          the court to disclose limited case information to relatives when 
          assessing them for placement of a child removed from the custody 
          of his or her parents.  The social worker may tell the relatives 
          that the child is in custody, the alleged reasons for why the 
          child is in custody and when, or if, the child is expected to 
          return to the parent's custody.   This bill would also authorize 
          the court to allow the attorney for the child to disclose this 
          limited case related information to relatives seeking temporary 
          or permanent custody of the child, while in the course of the 
          attorney's statutorily authorized independent investigation.

          In the majority of cases, the court will appoint an attorney to 
          represent a child removed from the physical custody of his or 
          her parents.  Existing law states that the attorney is 
          responsible for the protection, safety, physical and emotional 
                                                                      



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          well-being of the child.  Under existing law, the attorney is 
          not explicitly permitted to reveal case information to relatives 
          when the relative is being assessed for placement.  FLEXCOM 
          notes "because state law is unclear on this issue, some counties 
          have specifically allowed attorneys to make limited disclosure. 
          As a matter of practice, some attorneys representing children 
          make these types of disclosures, whether or not specifically 
          authorized by local rules." The lack of clarity stems from the 
          fact that, although the statute does not specifically authorize 
          the attorney to make these disclosures, the attorney is 
          nevertheless authorized to conduct his or her own independent 
          investigation as deemed necessary beyond the scope of the 
          proceeding. 

          Although the statute is silent on whether or not an attorney may 
          reveal this information, it would seem to naturally flow from 
          the responsibility delegated to the attorney in advocating for 
          the child's protection, safety and well-being to be able to 
          discuss the reasons for custody with potential relative 
          placements.  In order to fully assess whether the relative 
          placement is appropriate as well as to advocate for the child, 
          the attorney's hands should not be tied when communicating with 
          possible relatives requesting custody of the child.  

          Further, since it is the general statutory responsibility of the 
          attorney to represent the child's best interest, being able to 
          disclose limited case related information would help the 
          attorney carry out his or her duties under the statute. 

          3.  Attorney-client privilege  

          Because this bill would permit an attorney to disclose case 
          information to a relative, this bill potentially raises the 
          issue of whether that disclosure is a violation of the 
          attorney-client privilege.  Under existing law, a client may 
          refuse to allow his or her attorney to disclose confidential 
          communications between the client and attorney. The purpose of 
          the attorney-client privilege "is to enhance the value which 
          society places on legal representation by assuring the client 
          full disclosure to the attorney unfettered by fear that others 
          will be informed." (Sacramento Newspaper Guild, etc. v. 
          Sacramento County Board of Supervisors (1968) 263 Cal.App.2d 
          41.)  Since the communication proposed to be disclosed by this 
          bill would not likely originate between the attorney and the 
          child, but rather from the surrounding facts gathered regarding 
          why the child is in custody, it does not appear to fall within 
                                                                      



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          the privileged communications. Due to the origin of the 
          information and the limited disclosure, there should not be a 
          conflict with this doctrine.

          The author and sponsor note that "if an attorney representing a 
          child victim of abuse and neglect cannot reveal limited 
          information about the nature of the allegations, especially in 
          cases where the relative indicates either no knowledge of why 
          the child has been removed or has an inaccurate understanding of 
          the allegations, then they cannot fully assess the proposed 
          placement."  Further, as noted by the author and sponsor, "at 
          times relatives and proposed non-related extended family members 
          will share with the child's attorney that the county did not 
          explain the nature of the allegations and the reasons the child 
          has been detained from a parent.  Whether this is true or not, 
          it is important for the child's attorney to fully investigate 
          the knowledge base of the relative and their willingness to 
          accept the facts that the court finds to be true, often painful 
          facts that describe the relative's own child may raise difficult 
          loyalty issues."


           Support  :  California Probation Parole and Correctional 
          Association (In Concept); Chief Probation Officers of 
          California; Children's Advocacy Institute; The Executive 
          Committee of the Family Law Section of the California State Bar

           Opposition  :  None Known

                                        HISTORY
           
           Source  :  Sacramento Child Advocates, Inc.

           Related Pending Legislation  :  SB 927 (Runner) would authorize an 
          attorney for a party in a juvenile dependency proceeding 
          involving a sibling of the minor to inspect the case file.  This 
          bill has been referred to the Senate Committee on Public Safety 
          and the Senate Committee on Judiciary. 

           Prior Legislation  :  None Known

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