Amended in Senate June 14, 2013

California Legislature—2013–14 Regular Session

Assembly BillNo. 868


Introduced by Assembly Member Ammiano

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(Principal coauthors: Senators Corbett and Leno)

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February 21, 2013


An act to amend Section 68553 of the Government Code, and to amend Sectionsbegin delete 102end deletebegin insert 102, 304.7,end insert and 317 of the Welfare and Institutions Code, relating to courts.

LEGISLATIVE COUNSEL’S DIGEST

AB 868, as amended, 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 programbegin delete toend deletebegin insert forend insert 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.

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(4) Existing law requires the Judicial Council to develop and implement standards for the education and training of all judges who conduct dependency hearings.

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

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

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

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SECTION 1.  

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

3

68553.  

(a) The Judicial Council shall establish judicial training
4programs for judges, referees, commissioners, mediators, and
5others who are deemed appropriate who perform duties in family
6law matters.

7(b) The training shall include a family law session in any
8orientation session conducted for newly appointed or elected judges
9and an annual training session in family law.

10(c) The training shall include instruction in all aspects of family
11law, including effects of gender, gender identity, and sexual
P3    1orientation on family law proceedings, the economic effects of
2dissolution on the involved parties, and, on and after July 1, 1994,
3the effects of allegations of child abuse or neglect made during
4family law proceedings.

5

SEC. 2.  

Section 102 of the Welfare and Institutions Code is
6amended to read:

7

102.  

(a) Each CASA program shall, if feasible, be staffed by
8a minimum of one paid administrator. The staff shall be directly
9accountable to the presiding juvenile court judge and the CASA
10program board of directors, as applicable.

11(b) The program shall provide for volunteers to serve as CASAs.
12A CASA may be appointed in juvenile dependency proceedings
13under Section 300, including proceedings involving a nonminor
14dependent.

15(c) Each CASA shall serve at the pleasure of the court having
16jurisdiction over the proceedings in which a CASA has been
17appointed and that appointment may continue after the child attains
18his or her age of majority, with the consent of the nonminor
19dependent. A CASA shall do all of the following:

20(1) Provide independent, factual information to the court
21regarding the cases to which he or she is appointed.

22(2) Represent the best interests of the child involved, and
23consider the best interests of the family, in the cases to which he
24or she is appointed.

25(3) At the request of the judge, monitor cases to which he or
26she has been appointed to ensure that the court’s orders have been
27fulfilled.

28(d) The Judicial Council, through its rules and regulations, shall
29require an initial and ongoing training program consistent with
30this chapterbegin delete toend deletebegin insert forend insert all persons acting as a CASA, including, but not
31limited to, each of the following:

32(1) Dynamics of child abuse and neglect.

33(2) Court structure, including juvenile court laws regarding
34dependency.

35(3) Social service systems.

36(4) Child development.

37(5) Cultural competency and sensitivity relating to, and best
38practices for, providing adequate care to lesbian, gay, bisexual,
39and transgender youth.

40(6) Interviewing techniques.

P4    1(7) Report writing.

2(8) Roles and responsibilities of a CASA.

3(9) Rules of evidence and discovery procedures.

4(10) Problems associated with verifying reports.

5(e) The Judicial Council, through its CASA Advisory
6Committee, shall adopt guidelines for the screening of CASA
7volunteers, which shall include personal interviews, reference
8checks, checks for records of sex offenses and other criminal
9records, information from the Department of Motor Vehicles, and
10other information that the Judicial Council deems appropriate.

11begin insert

begin insertSEC. 3.end insert  

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begin insertSection 304.7 of the end insertbegin insertWelfare and Institutions Codeend insertbegin insert is
12amended to read:end insert

13

304.7.  

(a) begin deleteOn or before July 31, 1997, the end deletebegin insertThe end insertJudicial Council
14shall develop and implement standards for the education and
15training of all judges who conduct hearings pursuant to Section
16300. The training shall include, but not be limited to,begin delete aend deletebegin insert both of the
17following:end insert

18begin insert(1)end insertbegin insertend insertbegin insertAend insert component relating to Section 300 proceedings for newly
19appointed or elected judges and an annual training session in
20Section 300 proceedings.

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21(2) Cultural competency and sensitivity relating to, and best
22practices for, providing adequate care to lesbian, gay, bisexual,
23and transgender youth.

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24(b) Any commissioner or referee who is assigned to conduct
25hearings held pursuant to Section 300 shall meet the minimum
26standards for education and training established pursuant to
27subdivision (a), by July 31, 1998.

28(c) The Judicial Council shall submit an annual report to the
29Legislature on compliance by judges, commissioners and referees
30with the education and training standards described in subdivisions
31(a) and (b).

32

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33begin insertSEC. 4.end insert  

Section 317 of the Welfare and Institutions Code is
34amended to read:

35

317.  

(a) (1) When it appears to the court that a parent or
36guardian of the child desires counsel but is presently financially
37unable to afford and cannot for that reason employ counsel, the
38court may appoint counsel as provided in this section.

39(2) When it appears to the court that a parent or Indian custodian
40in an Indian child custody proceeding desires counsel but is
P5    1presently unable to afford and cannot for that reason employ
2counsel, the provisions of Section 1912(b) of Title 25 of the United
3States Code and Section 23.13 of Title 25 of the Code of Federal
4Regulations shall apply.

5(b) When it appears to the court that a parent or guardian of the
6child is presently financially unable to afford and cannot for that
7reason employ counsel, and the child has been placed in
8out-of-home care, or the petitioning agency is recommending that
9the child be placed in out-of-home care, the court shall appoint
10counsel for the parent or guardian, unless the court finds that the
11parent or guardian has made a knowing and intelligent waiver of
12counsel as provided in this section.

13(c) If a child or nonminor dependent is not represented by
14counsel, the court shall appoint counsel for the child or nonminor
15dependent, unless the court finds that the child or nonminor
16dependent would not benefit from the appointment of counsel. The
17court shall state on the record its reasons for that finding. A primary
18responsibility of counsel appointed to represent a child or nonminor
19dependent pursuant to this section shall be to advocate for the
20protection, safety, and physical and emotional well-being of the
21child or nonminor dependent. Counsel may be a district attorney,
22public defender, or other member of the bar, provided that he or
23she does not represent another party or county agency whose
24interests conflict with the child’s or nonminor dependent’s interests.
25The fact that the district attorney represents the child or nonminor
26dependent in a proceeding pursuant to Section 300 as well as
27conducts a criminal investigation or files a criminal complaint or
28information arising from the same or reasonably related set of facts
29as the proceeding pursuant to Section 300 is not in and of itself a
30conflict of interest. The court may fix the compensation for the
31services of appointed counsel. The appointed counsel shall have
32a caseload and training that ensures adequate representation of the
33child or nonminor dependent. The Judicial Council shall
34promulgate rules of court that establish caseload standards, training
35requirements, and guidelines for appointed counsel for children
36and shall adopt rules as required by Section 326.5 no later than
37July 1, 2001. On and after January 1, 2014, those training
38requirements shall include instruction on cultural competency and
39sensitivity relating to, and best practices for, providing adequate
P6    1care to lesbian, gay, bisexual, and transgender youth in out-of-home
2care.

3(d) Counsel shall represent the parent, guardian, child, or
4nonminor dependent at the detention hearing and at all subsequent
5proceedings before the juvenile court. Counsel shall continue to
6represent the parent, guardian, child, or nonminor dependent unless
7relieved by the court upon the substitution of other counsel or for
8cause. The representation shall include representing the parent,
9guardian, or the child in termination proceedings and in those
10proceedings relating to the institution or setting aside of a legal
11guardianship. On and after January 1, 2012, in the case of a
12nonminor dependent, as described in subdivision (v) of Section
1311400, no representation by counsel shall be provided for a parent,
14unless the parent is receiving court-ordered family reunification
15services.

16(e) (1) Counsel shall be charged in general with the
17representation of the child’s interests. To that end, counsel shall
18make or cause to have made any further investigations that he or
19she deems in good faith to be reasonably necessary to ascertain
20the facts, including the interviewing of witnesses, and shall
21examine and cross-examine witnesses in both the adjudicatory and
22dispositional hearings. Counsel may also introduce and examine
23his or her own witnesses, make recommendations to the court
24concerning the child’s welfare, and participate further in the
25proceedings to the degree necessary to adequately represent the
26child. When counsel is appointed to represent a nonminor
27dependent, counsel is charged with representing the wishes of the
28nonminor dependent except when advocating for those wishes
29conflicts with the protection or safety of the nonminor dependent.
30If the court finds that a nonminor dependent is not competent to
31direct counsel, the court shall appoint a guardian ad litem for the
32nonminor dependent.

33(2) If the child is four years of age or older, counsel shall
34interview the child to determine the child’s wishes and assess the
35child’s well-being, and shall advise the court of the child’s wishes.
36Counsel shall not advocate for the return of the child if, to the best
37of his or her knowledge, return of the child conflicts with the
38protection and safety of the child.

39(3) Counsel shall investigate the interests of the child beyond
40the scope of the juvenile proceeding, and report to the court other
P7    1interests of the child that may need to be protected by the institution
2of other administrative or judicial proceedings. Counsel
3representing a child in a dependency proceeding is not required to
4assume the responsibilities of a social worker, and is not expected
5to provide nonlegal services to the child.

6(4) (A) At least once every year, if the list of educational
7liaisons is available on the Internet Web site for the State
8Department of Education, both of the following shall apply:

9(i) Counsel shall provide his or her contact information to the
10educational liaison, as described in subdivision (b) of Section
1148853.5 of the Education Code, of each local educational agency
12serving counsel’s foster child clients in the county of jurisdiction.

13(ii) If counsel is part of a firm or organization representing foster
14children, the firm or organization may provide its contact
15information in lieu of contact information for the individual
16counsel. The firm or organization may designate a person or
17persons within the firm or organization to receive communications
18from educational liaisons.

19(B) The child’s caregiver or other person holding the right to
20make educational decisions for the child may provide the contact
21information of the child’s attorney to the child’s local educational
22agency.

23(C) Counsel for the child and counsel’s agent may, but are not
24required to, disclose to an individual who is being assessed for the
25possibility of placement pursuant to Section 361.3 the fact that the
26child is in custody, the alleged reasons that the child is in custody,
27and the projected likely date for the child’s return home, placement
28for adoption, or legal guardianship. Nothing in this paragraph shall
29be construed to prohibit counsel from making other disclosures
30pursuant to this subdivision, as appropriate.

31(5) Nothing in this subdivision shall be construed to permit
32counsel to violate a child’s attorney-client privilege.

33(6) The changes made to this subdivision during the 2011-12
34Regular Session of the Legislature by the act adding subparagraph
35(C) of paragraph (4) and paragraph (5) are declaratory of existing
36law.

37(7) The court shall take whatever appropriate action is necessary
38to fully protect the interests of the child.

39(f) Either the child or counsel for the child, with the informed
40consent of the child if the child is found by the court to be of
P8    1sufficient age and maturity to consent, which shall be presumed,
2subject to rebuttal by clear and convincing evidence, if the child
3is over 12 years of age, may invoke the psychotherapist-client
4privilege, physician-patient privilege, and clergyman-penitent
5privilege. If the child invokes the privilege, counsel may not waive
6it, but if counsel invokes the privilege, the child may waive it.
7Counsel shall be the holder of these privileges if the child is found
8by the court not to be of sufficient age and maturity to consent.
9For the sole purpose of fulfilling his or her obligation to provide
10legal representation of the child, counsel shall have access to all
11records with regard to the child maintained by a health care facility,
12as defined in Section 1545 of the Penal Code, health care providers,
13as defined in Section 6146 of the Business and Professions Code,
14a physician and surgeon or other health practitioner, as defined in
15former Section 11165.8 of the Penal Code, as that section read on
16January 1, 2000, or a child care custodian, as defined in former
17Section 11165.7 of the Penal Code, as that section read on January
181, 2000. Notwithstanding any other law, counsel shall be given
19access to all records relevant to the case that are maintained by
20state or local public agencies. All information requested from a
21child protective agency regarding a child who is in protective
22custody, or from a child’s guardian ad litem, shall be provided to
23the child’s counsel within 30 days of the request.

24(g) In a county of the third class, if counsel is to be provided to
25a child at the county’s expense other than by counsel for the
26agency, the court shall first use the services of the public defender
27before appointing private counsel. Nothing in this subdivision shall
28be construed to require the appointment of the public defender in
29any case in which the public defender has a conflict of interest. In
30the interest of justice, a court may depart from that portion of the
31procedure requiring appointment of the public defender after
32making a finding of good cause and stating the reasons therefor
33on the record.

34(h) In a county of the third class, if counsel is to be appointed
35to provide legal counsel for a parent or guardian at the county’s
36expense, the court shall first use the services of the alternate public
37defender before appointing private counsel. Nothing in this
38subdivision shall be construed to require the appointment of the
39alternate public defender in any case in which the public defender
40has a conflict of interest. In the interest of justice, a court may
P9    1depart from that portion of the procedure requiring appointment
2of the alternate public defender after making a finding of good
3cause and stating the reasons therefor on the record.



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