BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 424 (Beth Gaines)
Version: March 18, 2015
Hearing Date: June 9, 2015
Fiscal: Yes
Urgency: No
NR
SUBJECT
Court appointed child advocates: wards
DESCRIPTION
This bill would authorize the appointment of a court appointed
special advocate (CASA) in a juvenile delinquency proceeding,
and would provide that a CASA shall be considered court
personnel for purposes of inspecting the case file of a
dependent child or ward of the juvenile court.
BACKGROUND
When a child is removed from his or her family because of abuse
or neglect, the county child welfare agency oversees the case,
dependency counsel represents the child, and relatives, foster
parents, or group homes care for the child while the court
determines if the child will be returned to his or her family.
Unfortunately, county social workers, dependency counsel, and
courts often have too many cases to give each one the time and
attention it requires, and because foster placements often
change, many children are left without a constant adult in their
life.
In many cases, these children are served by volunteers who are
appointed by the court. These trained and supervised
volunteers, known as "court appointed special advocates"
(CASAs), represent children and aid the court in better
understanding their needs. CASAs also provide consistency for a
dependent child as he or she moves through the system. CASAs
can make a significant impact in the lives of abused or
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neglected children by fostering trusting relationships, working
closely with various parties, and monitoring cases for the
court. Because CASAs usually advocate on behalf of only one or
two children at a time, they build relationships with each child
by spending time with them and gathering facts about their life
so they can report back to the judge, who is then able to make
better decisions as to what is best for the child.
Developing a strong, mentoring relationship with a CASA is
particularly important for foster youth who are statistically
far more likely than the general population to become involved
with the criminal justice system. These youths are "three times
more likely to be arrested, convicted, and imprisoned as adults
compared to those who were allowed to remain at home. This
indicates that, after controlling for abuse severity, foster
care experience has some additional impact on future criminality
beyond the effects of abuse and neglect?. For children and
juveniles in out-of-home placements, experiences of abuse and
neglect are often compounded by other negative experiences and
factors?. The extensive needs of children who are placed in
foster care often go unmet, increasing the likelihood that youth
will engage in future delinquent behavior." (Erin McLaughlin,
Dual-System Youth: The Need for Systems Integration to Improve
Outcomes for Foster Youth Who Commit Delinquent Acts 16-17
(2009).)
Research further shows that youth who have contact with both the
dependency and delinquency systems, typically because of illegal
activity or "status offenses" while in foster care, are the
state's "most vulnerable youth," in part because of the
likelihood that these children will experience mental health and
substance abuse problems. (Nell Bernstein, Cal. State Library,
Helping Those Who Need it Most: Meeting the Mental Health Care
Needs of Youth in the Foster Care and Juvenile Justice Systems 3
(2005), available at http://www.library.ca.
gov/crb/cafis/reports/05-01/05-01.pdf [as of May, 27, 2015].)
To ensure that courts have the authority to appoint CASAs for
all children in the juvenile system, this bill would expressly
authorize courts to appoint a CASA in a delinquency proceeding.
This bill would make additional clarifying and technical changes
to the CASA program, including ensuring that CASAs have the
authority to access the case file of any dependent or delinquent
child they represent.
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CHANGES TO EXISTING LAW
1.Existing law provides that the juvenile court has jurisdiction
over a child who is subject to abuse or neglect. (Welf. &
Inst. Code Sec. 300.)
Existing law provides that the juvenile court has jurisdiction
over a child who persistently or habitually refuses to obey
the reasonable and proper orders or directions of his or her
parents or guardian, or who violated any local curfew
ordinance for minors. (Welf. & Inst. Code Sec. 601.)
Existing law requires, if a child is both a dependent and a
delinquent, the probation department and child welfare
services department to determine which status will best serve
the interests of the child and the protection of society, and
authorizes the probation department and the child welfare
services department in any county, in consultation with the
presiding juvenile court judge, to create a dual status
protocol which would permit a minor who meets specified
criteria to be designated simultaneously as both a dependent
child and a ward of the juvenile court. (Welf. & Inst. Code
Sec. 241.1.)
Existing Rule of Court defines a CASA as a volunteer who has
been recruited, screened, selected, trained, is being
supervised and supported by a local CASA program, and who has
been appointed by the juvenile court as a sworn officer of the
court to help define the best interest of a child or children
in juvenile court dependency and wardship proceedings. (Cal.
Rule of Court Sec. 5.655(b).)
Existing law allows a judge in a dependency proceeding to
appoint a CASA for a minor or nonminor dependent, and requires
each CASA to provide the court with independent, factual
information about the child or nonminor dependent, and
represent the best interests of the children involved. (Welf.
& Inst. Code Sec. 102.)
Existing law requires a CASA to report the results of any
investigation to the court, and requires that otherwise
confidential information reviewed by a CASA during the course
of his or her duties remains confidential. (Welf. & Inst.
Code Secs. 104, 105.)
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Existing law provides that the above provisions do not permit
a CASA to participate in a criminal proceeding or in a
proceeding to declare a person a ward of the juvenile court.
(Welf. & Inst. Code Sec. 109.)
This bill would provide that a CASA may be appointed on behalf
of a ward who is subject to juvenile court jurisdiction.
This bill would provide that a CASA is not prevented from
appearing in a delinquency or criminal court proceeding when
the CASA is acting as a support person to the child or is in
court on behalf of a child who is a crime victim.
2.Existing law requires the judge making an appointment of a
CASA to sign an order, which may grant the CASA the authority
to review specific relevant documents and interview parties
involved in the case to the same extent as any other officer
of the court appointed to investigate proceedings on behalf of
the court. (Welf. & Inst. Code Sec. 103.)
Existing law grants access to juvenile case files to specified
individuals and officials, including the child's parent or
guardian, attorneys for the parties, court and state
personnel, including law enforcement and child protective
services, and school district officials, and prohibits any
party authorized to inspect a juvenile court case file from
disseminating the file or its contents unless otherwise
permitted. (Welf. & Inst. Code Sec. 827(a).)
This bill would provide that a CASA is considered "court
personnel" for purposes of access to court records, as
provided.
This bill would make other clarifying and technical changes.
COMMENT
1.Stated need for the bill
According to the author:
While existing law does not expressly prohibit the appointment
of a CASA in delinquency proceedings, there are serious
questions raised as to the legality of these appointments, and
further the liability imposed on both the court and CASAs.
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This bill will remedy that issue [and] expressly authorize a
judge to appoint a CASA to any dependent, non-minor dependent,
or ward who is subject to the jurisdiction of the juvenile
court.
2.Provides express authorization for the appointment of CASAs in
delinquency proceedings
Current law expressly provides that a CASA may be appointed in
juvenile dependency proceedings, including proceedings involving
a nonminor dependent. Whether a CASA may be appointed for a
ward (i.e., a child in the delinquency system) is less clear
because the statutory language merely describes what the code
does not authorize. Specifically, existing law provides that
nothing in the relevant code sections permit a CASA to
participate in a criminal proceeding or in a proceeding to
declare a person a ward of the juvenile court. (Welf. & Inst.
Code Sec. 109.) However, many courts appoint CASAs in
delinquency proceedings. In fact, the Rules of Court provide
that CASAs are appointed to "help define the best interest of a
child or children in juvenile court dependency and wardship
proceedings." (Cal. Rule of Court Sec. 5.655(b).) The Judges of
the El Dorado Superior Court, sponsor of this bill, argue that
like foster children, wards benefit from the appointment of a
CASA, but that many judges are reluctant to appoint them in
delinquency proceedings because the statute does not expressly
authorize such action:
The appointment of a CASA can be critical to achieving the
best possible result in a child's case. Many times the adult
appointed to advocate for the child is the only stable adult
in the child's life. Volunteers interact with the child
differently than CPS social workers and probation officers.
The attorneys in the case have many other responsibilities,
and are generally unable to develop the type of personal
connection that a CASA has with the child. This relationship
provides the child with a positive adult role model. The
interaction between the child and the advocate helps form the
basis of the reports that are provided to the court before
decisions are made that affect the future of the child.
Staff notes that while this bill would clarify that CASAs may be
appointed for wards, it would also limit their participation in
the initial adjudication of delinquency. This would ensure that
CASAs are not used to investigate a ward's alleged crime, which
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is the role of law enforcement. Instead, in delinquency cases
CASAs would be used to communicate with and find out what is
best for the youth, and to advocate on the youth's behalf.
3.Would allow a CASA to participate in dual-status proceedings
and delinquency proceedings for cross-over youth
Prior to 2005, all California counties exercised "exclusive
jurisdiction" over youth in the child welfare system, meaning a
child could only receive services from either the dependency or
delinquency system. Thus, in cases where the court terminated
dependency jurisdiction after the child violated the law, the
child lost child welfare benefits, such as drug rehabilitation
services, mental health counseling, and court-appointed parental
supervision, in exchange for probation. (Jessica Springer,
Orange County's Answer to the Dual Jurisdictional Dilemma,
November 2014, 56 Orange County Lawyer 30.) Recognizing the
needs of this particular population, the Legislature passed AB
129 (Cohn, Chapter 468, Statutes of 2004) which gave counties
the discretion to exercise either dual or exclusive jurisdiction
over crossover youths. Despite this authority, only nine
counties have adopted protocols in response to AB 129 and thus,
most still operate under an exclusive jurisdiction system.
This bill would allow a CASA who was assigned to a foster child
to continue a relationship with a child who crosses over into
the delinquency system whether or not the particular county
exercises exclusive or dual jurisdiction. This will ensure that
these youths have at least one familiar adult able to advocate
for his or her best interest. In support, the Juvenile Judges of
California write "Most judges find that the appointment of a
CASA is beneficial because the CASA is in many cases the only,
or one of a very few, trust-based and ongoing relationships that
a youth may have. As a result of those relationships, the court
may be better able to learn the particular facts and
circumstances and to better respond to a youth's individual
needs."
4.Giving CASAs access to juvenile records
Existing law grants access to juvenile case files only to a
handful of specified individuals and officials, including the
child's parent or guardian, attorneys for the parties, and court
personnel, and prohibits any party from disseminating the file
or its contents unless otherwise permitted. When a judge
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appoints a CASA in a juvenile case, existing law requires the
judge to sign an order, which may grant the CASA the authority
to review specific relevant documents and interview parties
involved in the case to the same extent as any other officer of
the court appointed to investigate proceedings on behalf of the
court. (Welf. & Inst. Code Sec. 103.)
This bill would instead provide that a CASA is considered "court
personnel" for purposes of access to a youth's case file,
thereby ensuring that CASAs have access to information necessary
to advocate on a child's behalf. Additionally, this provision
would hold a CASA to the same standards of confidentiality
applicable to all other parties that have access to a juvenile's
case file. Staff notes that because the court is required to
make an order granting the CASA some level of access to a
youth's case file, CASAs generally have access to this
information under current law.
Support : Juvenile Court Judges of California
Opposition : None Known
HISTORY
Source : The Judges of the El Dorado Superior Court
Related Pending Legislation : None Known
Prior Legislation : None Known
Prior Vote :
Assembly Floor (Ayes 78, Noes 0)
Assembly Appropriations Committee (Ayes 16, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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