Amended in Senate June 25, 2013

Amended in Senate June 14, 2013

California Legislature—2013–14 Regular Session

Assembly BillNo. 868


Introduced by Assembly Member Ammiano

(Principal coauthors: Senators Corbett and Leno)

February 21, 2013


An act to amend Section 68553 of the Government Code, and to amend Sections 102, 304.7, 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 program for 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.

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

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.

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.  

(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.

P3    1(c) The training shall include instruction in all aspects of family
2law, including effects of gender, gender identity, and sexual
3orientation on family law proceedings, the economic effects of
4dissolution on the involved parties, and, on and after July 1, 1994,
5the effects of allegations of child abuse or neglect made during
6family law proceedings.

7

SEC. 2.  

Section 102 of the Welfare and Institutions Code is
8amended to read:

9

102.  

(a) Each CASA program shall, if feasible, be staffed by
10a minimum of one paid administrator. The staff shall be directly
11accountable to the presiding juvenile court judge and the CASA
12program board of directors, as applicable.

13(b) The program shall provide for volunteers to serve as CASAs.
14A CASA may be appointed in juvenile dependency proceedings
15under Section 300, including proceedings involving a nonminor
16dependent.

17(c) Each CASA shall serve at the pleasure of the court having
18jurisdiction over the proceedings in which a CASA has been
19appointed and that appointment may continue after the child attains
20his or her age of majority, with the consent of the nonminor
21dependent. A CASA shall do all of the following:

22(1) Provide independent, factual information to the court
23regarding the cases to which he or she is appointed.

24(2) Represent the best interests of the child involved, and
25consider the best interests of the family, in the cases to which he
26or she is appointed.

27(3) At the request of the judge, monitor cases to which he or
28she has been appointed to ensure that the court’s orders have been
29fulfilled.

30(d) The Judicial Council, through its rules and regulations, shall
31require an initial and ongoing training program consistent with
32this chapter for all persons acting as a CASA, including, but not
33limited to, each of the following:

34(1) Dynamics of child abuse and neglect.

35(2) Court structure, including juvenile court laws regarding
36dependency.

37(3) Social service systems.

38(4) Child development.

P4    1(5) Cultural competency and sensitivity relating to, and best
2practices for, providing adequate care to lesbian, gay, bisexual,
3and transgender youth.

4(6) Interviewing techniques.

5(7) Report writing.

6(8) Roles and responsibilities of a CASA.

7(9) Rules of evidence and discovery procedures.

8(10) Problems associated with verifying reports.

9(e) The Judicial Council, through its CASA Advisory
10Committee, shall adopt guidelines for the screening of CASA
11volunteers, which shall include personal interviews, reference
12checks, checks for records of sex offenses and other criminal
13records, information from the Department of Motor Vehicles, and
14other information that the Judicial Council deems appropriate.

15

SEC. 3.  

Section 304.7 of the Welfare and Institutions Code is
16amended to read:

17

304.7.  

(a) The Judicial Council shall develop and implement
18standards for the education and training of all judges who conduct
19hearings pursuant to Section 300. The training shall include, but
20not be limited to, both of the following:

21(1) A component relating to Section 300 proceedings for newly
22appointed or elected judges and an annual training session in
23Section 300 proceedings.

24(2) Cultural competency and sensitivity relating to, and best
25practices for, providing adequate care to lesbian, gay, bisexual,
26and transgender youth.

27(b) Any commissioner or referee who is assigned to conduct
28hearings held pursuant to Section 300 shall meet the minimum
29standards for education and training established pursuant to
30subdivision (a), by July 31, 1998.

31(c) The Judicial Council shall submit an annual report to the
32Legislature on compliance by judges, commissioners and referees
33with the education and training standards described in subdivisions
34(a) and (b).

35

SEC. 4.  

Section 317 of the Welfare and Institutions Code is
36amended to read:

37

317.  

(a) (1) When it appears to the court that a parent or
38guardian of the child desires counsel but is presently financially
39unable to afford and cannot for that reason employ counsel, the
40court may appoint counsel as provided in this section.

P5    1(2) When it appears to the court that a parent or Indian custodian
2in an Indian child custody proceeding desires counsel but is
3presently unable to afford and cannot for that reason employ
4counsel, the provisions of Section 1912(b) of Title 25 of the United
5States Code and Section 23.13 of Title 25 of the Code of Federal
6Regulations shall apply.

7(b) When it appears to the court that a parent or guardian of the
8child is presently financially unable to afford and cannot for that
9reason employ counsel, and the child has been placed in
10out-of-home care, or the petitioning agency is recommending that
11the child be placed in out-of-home care, the court shall appoint
12counsel for the parent or guardian, unless the court finds that the
13parent or guardian has made a knowing and intelligent waiver of
14counsel as provided in this section.

15(c) If a child or nonminor dependent is not represented by
16counsel, the court shall appoint counsel for the child or nonminor
17dependent, unless the court finds that the child or nonminor
18dependent would not benefit from the appointment of counsel. The
19court shall state on the record its reasons for that finding. A primary
20responsibility of counsel appointed to represent a child or nonminor
21 dependent pursuant to this section shall be to advocate for the
22protection, safety, and physical and emotional well-being of the
23child or nonminor dependent. Counsel may be a district attorney,
24public defender, or other member of the bar, provided that he or
25she does not represent another party or county agency whose
26interests conflict with the child’s or nonminor dependent’s interests.
27The fact that the district attorney represents the child or nonminor
28dependent in a proceeding pursuant to Section 300 as well as
29conducts a criminal investigation or files a criminal complaint or
30information arising from the same or reasonably related set of facts
31as the proceeding pursuant to Section 300 is not in and of itself a
32conflict of interest. The court may fix the compensation for the
33services of appointed counsel. The appointed counsel shall have
34a caseload and training that ensures adequate representation of the
35child or nonminor dependent. The Judicial Council shall
36promulgate rules of court that establish caseload standards, training
37requirements, and guidelines for appointed counsel for children
38and shall adopt rules as required by Section 326.5 no later than
39July 1, 2001.begin delete On and after January 1, 2014, thoseend deletebegin insert Thoseend insert training
40requirements shall include instruction on cultural competency and
P6    1sensitivity relating to, and best practices for, providing adequate
2care to lesbian, gay, bisexual, and transgender youth in out-of-home
3care.

4(d) Counsel shall represent the parent, guardian, child, or
5nonminor dependent at the detention hearing and at all subsequent
6proceedings before the juvenile court. Counsel shall continue to
7represent the parent, guardian, child, or nonminor dependent unless
8relieved by the court upon the substitution of other counsel or for
9cause. The representation shall include representing the parent,
10guardian, or the child in termination proceedings and in those
11proceedings relating to the institution or setting aside of a legal
12guardianship. On and after January 1, 2012, in the case of a
13nonminor dependent, as described in subdivision (v) of Section
1411400, no representation by counsel shall be provided for a parent,
15unless the parent is receiving court-ordered family reunification
16services.

17(e) (1) Counsel shall be charged in general with the
18representation of the child’s interests. To that end, counsel shall
19make or cause to have made any further investigations that he or
20she deems in good faith to be reasonably necessary to ascertain
21the facts, including the interviewing of witnesses, and shall
22examine and cross-examine witnesses in both the adjudicatory and
23dispositional hearings. Counsel may also introduce and examine
24his or her own witnesses, make recommendations to the court
25concerning the child’s welfare, and participate further in the
26proceedings to the degree necessary to adequately represent the
27child. When counsel is appointed to represent a nonminor
28dependent, counsel is charged with representing the wishes of the
29nonminor dependent except when advocating for those wishes
30conflicts with the protection or safety of the nonminor dependent.
31If the court finds that a nonminor dependent is not competent to
32direct counsel, the court shall appoint a guardian ad litem for the
33nonminor dependent.

34(2) If the child is four years of age or older, counsel shall
35interview the child to determine the child’s wishes and assess the
36child’s well-being, and shall advise the court of the child’s wishes.
37Counsel shall not advocate for the return of the child if, to the best
38of his or her knowledge, return of the child conflicts with the
39protection and safety of the child.

P7    1(3) Counsel shall investigate the interests of the child beyond
2the scope of the juvenile proceeding, and report to the court other
3interests of the child that may need to be protected by the institution
4of other administrative or judicial proceedings. Counsel
5representing a child in a dependency proceeding is not required to
6assume the responsibilities of a social worker, and is not expected
7to provide nonlegal services to the child.

8(4) (A) At least once every year, if the list of educational
9liaisons is available on the Internet Web site for the State
10Department of Education, both of the following shall apply:

11(i) Counsel shall provide his or her contact information to the
12educational liaison, as described in subdivision (b) of Section
1348853.5 of the Education Code, of each local educational agency
14serving counsel’s foster child clients in the county of jurisdiction.

15(ii) If counsel is part of a firm or organization representing foster
16children, the firm or organization may provide its contact
17information in lieu of contact information for the individual
18counsel. The firm or organization may designate a person or
19persons within the firm or organization to receive communications
20from educational liaisons.

21(B) The child’s caregiver or other person holding the right to
22make educational decisions for the child may provide the contact
23information of the child’s attorney to the child’s local educational
24agency.

25(C) Counsel for the child and counsel’s agent may, but are not
26required to, disclose to an individual who is being assessed for the
27possibility of placement pursuant to Section 361.3 the fact that the
28child is in custody, the alleged reasons that the child is in custody,
29and the projected likely date for the child’s return home, placement
30for adoption, or legal guardianship. Nothing in this paragraph shall
31be construed to prohibit counsel from making other disclosures
32pursuant to this subdivision, as appropriate.

33(5) Nothing in this subdivision shall be construed to permit
34counsel to violate a child’s attorney-client privilege.

35(6) The changes made to this subdivision during the 2011-12
36Regular Session of the Legislature by the act adding subparagraph
37(C) of paragraph (4) and paragraph (5) are declaratory of existing
38law.

39(7) The court shall take whatever appropriate action is necessary
40to fully protect the interests of the child.

P8    1(f) Either the child or counsel for the child, with the informed
2consent of the child if the child is found by the court to be of
3sufficient age and maturity to consent, which shall be presumed,
4subject to rebuttal by clear and convincing evidence, if the child
5is over 12 years of age, may invoke the psychotherapist-client
6privilege, physician-patient privilege, and clergyman-penitent
7privilege. If the child invokes the privilege, counsel may not waive
8it, but if counsel invokes the privilege, the child may waive it.
9Counsel shall be the holder of these privileges if the child is found
10by the court not to be of sufficient age and maturity to consent.
11For the sole purpose of fulfilling his or her obligation to provide
12legal representation of the child, counsel shall have access to all
13records with regard to the child maintained by a health care facility,
14as defined in Section 1545 of the Penal Code, health care providers,
15as defined in Section 6146 of the Business and Professions Code,
16a physician and surgeon or other health practitioner, as defined in
17former Section 11165.8 of the Penal Code, as that section read on
18January 1, 2000, or a child care custodian, as defined in former
19Section 11165.7 of the Penal Code, as that section read on January
20 1, 2000. Notwithstanding any other law, counsel shall be given
21access to all records relevant to the case that are maintained by
22state or local public agencies. All information requested from a
23child protective agency regarding a child who is in protective
24custody, or from a child’s guardian ad litem, shall be provided to
25the child’s counsel within 30 days of the request.

26(g) In a county of the third class, if counsel is to be provided to
27a child at the county’s expense other than by counsel for the
28agency, the court shall first use the services of the public defender
29before appointing private counsel. Nothing in this subdivision shall
30be construed to require the appointment of the public defender in
31any case in which the public defender has a conflict of interest. In
32the interest of justice, a court may depart from that portion of the
33procedure requiring appointment of the public defender after
34making a finding of good cause and stating the reasons therefor
35on the record.

36(h) In a county of the third class, if counsel is to be appointed
37to provide legal counsel for a parent or guardian at the county’s
38expense, the court shall first use the services of the alternate public
39defender before appointing private counsel. Nothing in this
40subdivision shall be construed to require the appointment of the
P9    1alternate public defender in any case in which the public defender
2has a conflict of interest. In the interest of justice, a court may
3depart from that portion of the procedure requiring appointment
4of the alternate public defender after making a finding of good
5cause and stating the reasons therefor on the record.



O

    97