California Legislature—2013–14 Regular Session

Assembly BillNo. 868


Introduced by Assembly Member Ammiano

February 21, 2013


An act to amend Section 68553 of the Government Code, and to amend Sections 102 and 317 of the Welfare and Institutions Code, relating to courts.

LEGISLATIVE COUNSEL’S DIGEST

AB 868, as introduced, Ammiano. Courts: training programs: gender identity and sexual orientation.

(1) Existing law requires the Judicial Council to perform various duties designed to assist the judiciary, including establishing judicial training programs for judges, referees, commissioners, mediators, and others who perform duties in family law matters. Existing law requires this training to include instruction in all aspects of family law, including the effects of gender on family law proceedings.

This bill would require that training to also include the effects of gender identity and sexual orientation on family law proceedings.

(2) Existing law establishes the jurisdiction of the juvenile court, which is authorized to adjudge certain children to be dependents of the court under certain circumstances, and prescribes various hearings and other procedures for these purposes. Existing law requires a court to appoint counsel for a child who is not represented by counsel in these dependency proceedings, except as specified. Under existing law, appointed counsel is required to have a caseload and training that ensures adequate representation, and Judicial Council is required to promulgate rules of court that establish caseload standards, training requirements, and guidelines for counsel.

This bill would require that training to also include instruction on cultural competency and sensitivity relating to, and best practices for, providing adequate care to lesbian, gay, bisexual, and transgender youth.

(3) Existing law requires the Judicial Council to establish a planning and advisory group to recommend on the development of program guidelines and funding procedures for court-appointed special advocates (CASAs) and to establish a request-for-proposal process to establish, maintain, or expand local CASA programs, pursuant to which volunteer CASAs provide designated services and support to children under the jurisdiction of the juvenile court. The council is required to, among other things, require an initial and ongoing training program to all persons acting as a CASA that covers various topics, including, but not limited to, child development.

This bill would require that training to also include cultural competency and sensitivity relating to, and best practices for, providing adequate care to lesbian, gay, bisexual, and transgender (LGBT) youth.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

Section 68553 of the Government Code is
2amended to read:

3

68553.  

begin insert(a)end insertbegin insertend insertThe Judicial Council shall establish judicial training
4programs for judges, referees, commissioners, mediators, and
5othersbegin delete asend deletebegin insert who areend insert deemed appropriate who perform duties in family
6law matters.

begin delete

7The

end delete

8begin insert(b)end insertbegin insertend insertbegin insertTheend insert training shall include a family law session in any
9orientation session conducted for newly appointed or elected judges
10and an annual training session in family law.

begin delete

11The

end delete

12begin insert(c)end insertbegin insertend insertbegin insertTheend insert training shall include instruction in all aspects of family
13law, including effects ofbegin delete genderend deletebegin insert gender, gender identity, and sexual
14orientationend insert
on family law proceedings, the economic effects of
15dissolution on the involved parties, and, on and after July 1, 1994,
16the effects of allegations of child abuse or neglect made during
17family law proceedings.

18

SEC. 2.  

Section 102 of the Welfare and Institutions Code is
19amended to read:

P3    1

102.  

(a) Each CASA program shall, if feasible, be staffed by
2a minimum of one paid administrator. The staff shall be directly
3accountable to the presiding juvenile court judge and the CASA
4program board of directors, as applicable.

5(b) The program shall provide for volunteers to serve as CASAs.
6A CASA may be appointed in juvenile dependency proceedings
7under Section 300, including proceedings involving a nonminor
8dependent.

9(c) Each CASA shall serve at the pleasure of the court having
10jurisdiction over the proceedings in which a CASA has been
11appointed and that appointment may continue after the child attains
12his or her age of majority, with the consent of the nonminor
13dependent. A CASA shall do all of the following:

14(1) Provide independent, factual information to the court
15regarding the cases to which he or she is appointed.

16(2) Represent the best interests of thebegin delete childrenend deletebegin insert childend insert involved,
17and consider the best interests of the family, in the cases to which
18he or she is appointed.

19(3) At the request of the judge, monitor cases to which he or
20she has been appointed tobegin delete assureend deletebegin insert ensureend insert that the court’s orders
21have been fulfilled.

22(d) The Judicial Council, through its rules and regulations, shall
23require an initial and ongoing training program consistent with
24this chapter to all persons acting as a CASA, including, but not
25limited to, each of the following:

26(1) Dynamics of child abuse and neglect.

27(2) Court structure, including juvenile court laws regarding
28dependency.

29(3) Social service systems.

30(4) Child development.

begin insert

31(5) Cultural competency and sensitivity relating to, and best
32practices for, providing adequate care to lesbian, gay, bisexual,
33and transgender youth.

end insert
begin delete

34(5)

end delete

35begin insert(end insertbegin insert6)end insert Interviewing techniques.

begin delete

36(6)

end delete

37begin insert(end insertbegin insert7)end insert Report writing.

begin delete

38(7)

end delete

39begin insert(end insertbegin insert8)end insert Roles and responsibilities of a CASA.

begin delete

40(8)

end delete

P4    1begin insert(end insertbegin insert9)end insert Rules of evidence and discovery procedures.

begin delete

2(9)

end delete

3begin insert(10)end insert Problems associated with verifying reports.

4(e) The Judicial Council, through its CASA Advisory
5Committee, shall adopt guidelines for the screening of CASA
6volunteers, which shall include personal interviews, reference
7checks, checks for records of sex offenses and other criminal
8records, information from the Department of Motor Vehicles, and
9other informationbegin delete asend deletebegin insert thatend insert the Judicial Council deems appropriate.

10

SEC. 3.  

Section 317 of the Welfare and Institutions Code is
11amended to read:

12

317.  

(a) (1) When it appears to the court that a parent or
13guardian of the child desires counsel but is presently financially
14unable to afford and cannot for that reason employ counsel, the
15court may appoint counsel as provided in this section.

16(2) When it appears to the court that a parent or Indian custodian
17in an Indian child custody proceeding desires counsel but is
18presently unable to afford and cannot for that reason employ
19counsel, the provisions of Section 1912(b) of Title 25 of the United
20States Code and Section 23.13 of Title 25 of the Code of Federal
21Regulations shall apply.

22(b) When it appears to the court that a parent or guardian of the
23child is presently financially unable to afford and cannot for that
24reason employ counsel, and the child has been placed in
25out-of-home care, or the petitioning agency is recommending that
26the child be placed in out-of-home care, the court shall appoint
27counsel for the parent or guardian, unless the court finds that the
28parent or guardian has made a knowing and intelligent waiver of
29counsel as provided in this section.

30(c) If a child or nonminor dependent is not represented by
31counsel, the court shall appoint counsel for the child or nonminor
32dependent, unless the court finds that the child or nonminor
33dependent would not benefit from the appointment of counsel. The
34court shall state on the record its reasons for that finding. A primary
35responsibility of counsel appointed to represent a child or nonminor
36dependent pursuant to this section shall be to advocate for the
37protection, safety, and physical and emotional well-being of the
38child or nonminor dependent. Counsel may be a district attorney,
39public defender, or other member of the bar, provided that he or
40she does not represent another party or county agency whose
P5    1interests conflict with the child’s or nonminor dependent’s interests.
2The fact that the district attorney represents the child or nonminor
3dependent in a proceeding pursuant to Section 300 as well as
4conducts a criminal investigation or files a criminal complaint or
5information arising from the same or reasonably related set of facts
6as the proceeding pursuant to Section 300 is not in and of itself a
7conflict of interest. The court may fix the compensation for the
8services of appointed counsel. The appointed counsel shall have
9a caseload and training that ensures adequate representation of the
10child or nonminor dependent. The Judicial Council shall
11promulgate rules of court that establish caseload standards, training
12requirements, and guidelines for appointed counsel for children
13and shall adopt rules as required by Section 326.5 no later than
14July 1, 2001.begin insert On and after January 1, 2014, those training
15requirements shall include instruction on cultural competency and
16sensitivity relating to, and best practices for, providing adequate
17care to lesbian, gay, bisexual, and transgender youth in
18out-of-home care.end insert

19(d) Counsel shall represent the parent, guardian, child, or
20nonminor dependent at the detention hearing and at all subsequent
21proceedings before the juvenile court. Counsel shall continue to
22represent the parent, guardian, child, or nonminor dependent unless
23relieved by the court upon the substitution of other counsel or for
24cause. The representation shall include representing the parent,
25guardian, or the child in termination proceedings and in those
26proceedings relating to the institution or setting aside of a legal
27guardianship. On and after January 1, 2012, in the case of a
28nonminor dependent, as described in subdivision (v) of Section
2911400, no representation by counsel shall be provided for a parent,
30unless the parent is receiving court-ordered family reunification
31services.

32(e) (1) Counsel shall be charged in general with the
33representation of the child’s interests. To that end, counsel shall
34make or cause to have made any further investigations that he or
35she deems in good faith to be reasonably necessary to ascertain
36the facts, including the interviewing of witnesses, and shall
37examine and cross-examine witnesses in both the adjudicatory and
38dispositional hearings. Counsel may also introduce and examine
39his or her own witnesses, make recommendations to the court
40concerning the child’s welfare, and participate further in the
P6    1proceedings to the degree necessary to adequately represent the
2child. When counsel is appointed to represent a nonminor
3dependent, counsel is charged with representing the wishes of the
4nonminor dependent except when advocating for those wishes
5conflicts with the protection or safety of the nonminor dependent.
6If the court finds that a nonminor dependent is not competent to
7direct counsel, the court shall appoint a guardian ad litem for the
8nonminor dependent.

9(2) If the child is four years of age or older, counsel shall
10interview the child to determine the child’s wishes and assess the
11child’s well-being, and shall advise the court of the child’s wishes.
12Counsel shall not advocate for the return of the child if, to the best
13of his or her knowledge, return of the child conflicts with the
14protection and safety of the child.

15(3) Counsel shall investigate the interests of the child beyond
16the scope of the juvenile proceeding, and report to the court other
17interests of the child that may need to be protected by the institution
18of other administrative or judicial proceedings. Counsel
19representing a child in a dependency proceeding is not required to
20assume the responsibilities of a social worker, and is not expected
21to provide nonlegal services to the child.

22(4) (A) At least once every year, if the list of educational
23liaisons is available on the Internet Web site for the State
24Department of Education, both of the following shall apply:

25(i) Counsel shall provide his or her contact information to the
26educational liaison, as described in subdivision (b) of Section
2748853.5 of the Education Code, of each local educational agency
28serving counsel’s foster child clients in the county of jurisdiction.

29(ii) If counsel is part of a firm or organization representing foster
30children, the firm or organization may provide its contact
31information in lieu of contact information for the individual
32counsel. The firm or organization may designate a person or
33persons within the firm or organization to receive communications
34from educational liaisons.

35(B) The child’s caregiver or other person holding the right to
36make educational decisions for the child may provide the contact
37information of the child’s attorney to the child’s local educational
38agency.

39(C) Counsel for the child and counsel’s agent may, but are not
40required to, disclose to an individual who is being assessed for the
P7    1possibility of placement pursuant to Section 361.3 the fact that the
2child is in custody, the alleged reasons that the child is in custody,
3and the projected likely date for the child’s return home, placement
4for adoption, or legal guardianship. Nothing in this paragraph shall
5be construed to prohibit counsel from making other disclosures
6pursuant to this subdivision, as appropriate.

7(5) Nothing in this subdivision shall be construed to permit
8counsel to violate a child’s attorney-client privilege.

9(6) The changes made to this subdivision during the 2011-12
10Regular Session of the Legislature by the act adding subparagraph
11(C) of paragraph (4) and paragraph (5) are declaratory of existing
12law.

13(7) The court shall take whatever appropriate action is necessary
14to fully protect the interests of the child.

15(f) Either the child or counsel for the child, with the informed
16consent of the child if the child is found by the court to be of
17sufficient age and maturity to consent, which shall be presumed,
18subject to rebuttal by clear and convincing evidence, if the child
19is over 12 years of age, may invoke the psychotherapist-client
20privilege, physician-patient privilege, and clergyman-penitent
21privilege. If the child invokes the privilege, counsel may not waive
22it, but if counsel invokes the privilege, the child may waive it.
23Counsel shall be the holder of these privileges if the child is found
24by the court not to be of sufficient age and maturity to consent.
25For the sole purpose of fulfilling his or her obligation to provide
26legal representation of the child, counsel shall have access to all
27records with regard to the child maintained by a health care facility,
28as defined in Section 1545 of the Penal Code, health care providers,
29as defined in Section 6146 of the Business and Professions Code,
30a physician and surgeon or other health practitioner, as defined in
31former Section 11165.8 of the Penal Code, as that section read on
32January 1, 2000, or a child care custodian, as defined in former
33Section 11165.7 of the Penal Code, as that section read on January
341, 2000. Notwithstanding any other law, counsel shall be given
35access to all records relevant to the case that are maintained by
36state or local public agencies. All information requested from a
37child protective agency regarding a child who is in protective
38custody, or from a child’s guardian ad litem, shall be provided to
39the child’s counsel within 30 days of the request.

P8    1(g) In a county of the third class, if counsel is to be provided to
2a child at the county’s expense other than by counsel for the
3agency, the court shall first use the services of the public defender
4before appointing private counsel. Nothing in this subdivision shall
5be construed to require the appointment of the public defender in
6any case in which the public defender has a conflict of interest. In
7the interest of justice, a court may depart from that portion of the
8procedure requiring appointment of the public defender after
9making a finding of good cause and stating the reasons therefor
10on the record.

11(h) In a county of the third class, if counsel is to be appointed
12to provide legal counsel for a parent or guardian at the county’s
13expense, the court shall first use the services of the alternate public
14defender before appointing private counsel. Nothing in this
15subdivision shall be construed to require the appointment of the
16alternate public defender in any case in which the public defender
17has a conflict of interest. In the interest of justice, a court may
18depart from that portion of the procedure requiring appointment
19of the alternate public defender after making a finding of good
20cause and stating the reasons therefor on the record.



O

    99