Senate Bill No. 316

Introduced by Senator Mitchell

(Principal coauthor: Assembly Member Levine)

February 23, 2015

An act to amend Section 317 of the Welfare and Institutions Code, relating to dependency proceedings.

LEGISLATIVE COUNSEL’S DIGEST

SB 316, as introduced, Mitchell. Dependency proceedings: counsel.

Existing law requires the juvenile court to appoint counsel for a child or nonminor dependent in dependency proceedings if he or she is not represented by counsel, unless the court determines that there would be no benefit from the appointment of counsel. Existing law authorizes counsel to be a district attorney, public defender, or other member of the bar who satisfies certain conditions. Existing law authorizes the court to fix the compensation for the services of appointed counsel. Existing law requires the Judicial Council to promulgate rules of court to establish caseload standards, training requirements, and guidelines for appointed counsel.

This bill would prohibit counsel representing a child or nonminor dependent in dependency proceedings from having a caseload that exceeds a certain number of clients, as specified. The bill would delete the requirement that the Judicial Council promulgate rules of court to establish caseload standards.

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

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

SECTION 1.  

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

317.  

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

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

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

(c) If a child or nonminor dependent is not represented by
counsel, the court shall appoint counsel for the child or nonminor
dependent, unless the court finds that the child or nonminor
dependent would not benefit from the appointment of counsel. The
court shall state on the record its reasons for that finding. A primary
responsibility of counsel appointed to represent a child or nonminor
dependent pursuant to this section shall be to advocate for the
protection, safety, and physical and emotional well-being of the
child or nonminor dependent. Counsel may be a district attorney,
public defender, or other member of the bar, provided that he or
she does not represent another party or county agency whose
interests conflict with the child’s or nonminor dependent’s interests.
The fact that the district attorney represents the child or nonminor
dependent in a proceeding pursuant to Section 300 as well as
conducts a criminal investigation or files a criminal complaint or
information arising from the same or reasonably related set of facts
as the proceeding pursuant to Section 300 is not in and of itself a
conflict of interest. The court may fix the compensation for the
services of appointed counsel. The appointed counsel shall have
a caseload and training that ensures adequate representation of the
child or nonminor dependent. begin insert Counsel representing a child or
nonminor dependent shall not have a caseload that exceeds 77
child or nonminor dependent clients, unless the counsel has the
assistance of, at a minimum, a social worker or investigator who
is employed on a half-time or greater than half-time basis, in which
case the caseload shall not exceed 188 child or nonminor
dependent clients. end insert The Judicial Council shall promulgate rules of
court that establish begin delete caseload standards, end delete training begin delete requirements, end delete
begin insert requirements end insert and guidelines for appointed counsel for children
and shall adopt rules as required by Section 326.5 no later than
July 1, 2001. Those training requirements shall include instruction
on cultural competency and sensitivity relating to, and best
practices for, providing adequate care to lesbian, gay, bisexual,
and transgender youth in out-of-home care.

(d) Counsel shall represent the parent, guardian, child, or
nonminor dependent at the detention hearing and at all subsequent
proceedings before the juvenile court. Counsel shall continue to
represent the parent, guardian, child, or nonminor dependent unless
relieved by the court upon the substitution of other counsel or for
cause. The representation shall include representing the parent,
guardian, or the child in termination proceedings and in those
proceedings relating to the institution or setting aside of a legal
guardianship. On and after January 1, 2012, in the case of a
nonminor dependent, as described in subdivision (v) of Section
11400, no representation by counsel shall be provided for a parent,
unless the parent is receiving court-ordered family reunification
services.

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

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

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

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

(i) Counsel shall provide his or her contact information to the
educational liaison, as described in subdivision (b) of Section
48853.5 of the Education Code, of each local educational agency
serving counsel’s foster child clients in the county of jurisdiction.

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

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

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

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

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

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

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

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

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