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 (more) SB 926 (Runner) Page 2 of ? 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).) SB 926 (Runner) Page 3 of ? 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 SB 926 (Runner) Page 4 of ? 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 SB 926 (Runner) Page 5 of ? 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 SB 926 (Runner) Page 6 of ? 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 ************** SB 926 (Runner) Page 7 of ?