BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015 - 2016 Regular Session
SB 316 (Mitchell)
Version: February 23, 2015
Hearing Date: April 14, 2015
Fiscal: Yes
Urgency: No
NR
SUBJECT
Dependency proceedings: counsel
DESCRIPTION
This bill would prohibit counsel representing a child or
nonminor dependent in dependency proceedings from having a
caseload that exceeds 77 clients, unless the counsel has the
assistance of a social worker or investigator, as specified, in
which case the caseload shall not exceed 188 clients. This bill
would additionally strike a requirement that the Judicial
Council promulgate rules of court to establish caseload
standards.
BACKGROUND
Every year, due to abuse or neglect, children are removed from
their home and placed in the juvenile dependency system. The
court is required to appoint minor's counsel, unless the child
would not benefit from counsel. In 2000, the Legislature
enacted SB 2160 (Schiff, Ch. 450, Stats. 2000) which presumed
that children entering the dependency system would benefit from
counsel and required appointed counsel to have caseloads and
training that ensure adequate representation. Under that bill,
the Judicial Council was required to promulgate rules
establishing caseload standards. To that end, the Judicial
Council conducted a study in 2002 and recommended "that a
maximum caseload of 141 clients per full-time dependency
attorney be the base-level standard of performance; a maximum
caseload of 77 clients was identified as necessary for an
optimal, or best practice, standard of performance." (Judicial
Council of Cal., Admin Off. of Cts., Dependency Counsel Caseload
SB 316 (Mitchell)
Page 2 of ?
Standards: A Report to the California Legislature (Apr. 2008),
p. 7.)
Subsequent studies modified that caseload standard to a maximum
of 188 clients per attorney if the attorney had the assistance
of a half-time social worker or investigator. (Id at 8.) The
Judicial Council adopted the revised caseload standard in 2007,
but noted that "although a caseload standard has been formally
adopted, there is widespread recognition that there is not
currently sufficient funding available to implement that
standard." (Id.)
This bill would establish, in statute, a caseload standard of 77
clients, or 188 clients if counsel has the assistance of a
social worker or investigator, as specified, per minor's
counsel, and remove the requirement that the Judicial Council
promulgate caseload standards.
CHANGES TO EXISTING LAW
Existing law authorizes the juvenile court to adjudge minor
children "dependents" of the court in response to allegations of
abuse or neglect, as specified. (Welf. & Inst. Code Sec. 300 et
seq.)
Existing law requires the court to appoint counsel for children
or nonminor dependents in dependency proceedings who are not
represented by counsel, unless the court finds that the child
would not benefit from that appointment. (Welf. & Inst. Code
Sec. 317(c).)
Existing law provides the appointed counsel shall have a
caseload and training that ensures adequate representation of
the child or nonminor dependent, and requires the Judicial
Council to promulgate rules of court that establish caseload
standards, training requirements, and guidelines for appointed
counsel for children and nonminor dependents, as specified.
(Welf. & Inst. Code Sec. 317(c).)
This bill would (1) delete the requirement that the Judicial
Council promulgate rules of court to establish caseload
standards and (2) would, instead, prohibit counsel representing
a child or nonminor dependent in dependency proceedings from
having a caseload that exceeds 77 child or nonminor dependent
clients, unless the counsel has the assistance of a social
SB 316 (Mitchell)
Page 3 of ?
worker or investigator who is employed at least on a half-time
basis, in which case the caseload shall not exceed 188 child or
nonminor dependent clients.
COMMENT
1.Stated need for the bill
According to the author:
Under current law, dependency counsel does not have a limit on
caseloads, leading to counties having lawyers with caseloads
exceeding 300 child or nonminor clients. This leads to counsel
not being able to fully represent a child solely due to too
many clients and not enough time. The State of California has
a responsibility to ensure that every child or minor dependent
in our foster care system is fully and adequately represented
in dependency court as the child does not have a voice of
their own.
2.Responsibilities of minor's counsel compromised by large
caseloads
In 2000, the Legislature enacted SB 2160, which expanded upon
the duties a minor's counsel owes to his or her clients. Prior
to that bill, counsel was "charged in general with the
representation of the child's interests." (Welf. & Inst. Code
Sec. 317(e).) SB 2160 additionally provided that minor's counsel
is to "advocate for the protection, safety, and physical and
emotional well-being of the child or nonminor dependent," and
required counsel to "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 is further required to interview children
over the age of four to determine the child's wishes and assess
the child's well-being, and is prohibited from advocating for
the return of the child if it would conflict with his or her
protection and safety. SB 2160 also required the Judicial
Council to promulgate rules of court that establish caseload
standards by July, 2001. This Committee noted in its analysis
of the bill that the question of caseload standards is directly
related to the best interests of the child, and recommended that
the Judicial Council look into appropriate standards:
SB 316 (Mitchell)
Page 4 of ?
Ultimately, it is the best interest of the child that
appointment of counsel seeks to promote, under current law and
under this bill. Many advocates who have watched dependency
courts state that even in those states and counties that
regularly appoint counsel for the dependent child, the best
interest of the child may not be advanced because the attorney
appointed is not qualified, or is undercompensated, or is so
overloaded with cases they border on incompetence. (Sen. Com.
on Judiciary, Analysis of Sen. Bill No. 2160 (1999-2000 Reg.
Sess.) as amended March 30, 2000.)
Subsequent Judicial Council-sponsored studies established a
maximum caseload of 77 clients per full-time dependency
attorney, or 188 clients with the assistance of a social worker
or investigator. (Judicial Council of Cal., Admin Off. of Cts.,
Dependency Counsel Caseload Standards: A Report to the
California Legislature (Apr. 2008), p. 8.) This bill would
implement those limits. The Children's Law Center, a nonprofit
legal services organization that represents over 32,000 foster
children, writes in support:
Each of our attorneys represents, on average, 300 child
clients. This is drastically higher than the caseload
standard as recommended by a 2008 American Humane Society
caseload study. That study concluded that the optimal
caseload for a dependency attorney is 77 clients, while the
maximum is 188 (when assisted by a social work investigator.)
Currently, 32 counties throughout California are not
sufficiently funded to meet even the maximum caseload
standard. In 15 California counties, attorneys are so
under-resources that caseloads are more than double that of
the maximum standard.
The detrimental impact of these astounding caseloads cannot be
overstated. For a foster child struggling to cope with the
trauma of having been abused or neglected, meaningful access
to a lawyer is critical. Without a reasonable caseload, even
the most dedicated and highly skilled attorney cannot meet the
demanding and complex needs of California's most vulnerable
children.
While, at the time of this writing, there is broad support for
codifying caseload limits on minor's counsel, many contend that
the ceilings imposed under this bill are in fact too high and
would like to see lower caseloads so that counsel may better
SB 316 (Mitchell)
Page 5 of ?
represent dependent youth. The Children's Advocacy Institute
writes in support, "our moral and legal obligation to these
children is entirely unique. Nothing compares to it. It is at
the pinnacle of our duties. We remove them by force of law from
their families and by doing so we incur the moral responsibility
not to abuse them on purpose or because of other priorities. We
are obligated not just to avoid further harming them. We are
obligated to do right by them."
3.Concerns raised by dependency lawyers representing parents and
guardians
The Los Angeles Dependency Lawyers and the Dependency Legal
Group of San Diego, who represent parents in dependency
proceedings, argue that this bill would, by imposing caseload
limits on minors' counsel but not parents' counsel, create a
rift in the dependency system. The Los Angeles Dependency
Lawyers write that this bill would "only solve part of the
plight of the underfunded, and unconscionable high caseloads of
child and parent dependency lawyers. In fact what is being
proposed would significantly work to the detriment of California
children and families. ? Mandating smaller caseloads only for
children's counsel neglects the need for smaller caseloads for
parents (and guardians' counsel). This of course, sends a
direct message to parents, parents' and guardians' counsel,
other agencies and entities in the dependency system, and the
judiciary that parents are not as important as children's
counsel."
Support : California Alliance of Child and Family Services;
Children's Advocacy Institute; Children's Law Center; Legal
Advocates for Children & Youth; Legal Services for Prisoners
with Children; National Association of Social Workers -
California Chapter; National Center for Youth Law
Opposition : Los Angeles Dependency Lawyers
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation : SB 2160 (Schiff, Chapter 450, Statutes of
2000) See Background.
SB 316 (Mitchell)
Page 6 of ?
**************