BILL NUMBER: AB 2480 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 27, 2006
INTRODUCED BY Assembly Member Evans
FEBRUARY 23, 2006
An act to amend Section Sections 317 and
395 of the Welfare and Institutions Code, relating to dependent
children.
LEGISLATIVE COUNSEL'S DIGEST
AB 2480, as amended, Evans Dependent children: counsel.
Existing law authorizes a child or counsel for a child, with the
informed consent of the child if the child is found by a court to be
of sufficient age and maturity to consent, to invoke the
psychotherapist-client privilege, physician-patient privilege, and
clergyman-penitent privilege.
This bill would provide that the child shall be presumed to be of
sufficient age and maturity to consent if the child is over 12 years
of age.
Existing law requires the court to appoint counsel for a child in
dependency proceedings at the trial level, unless the court finds
that the child would not benefit from the appointment of counsel.
This bill would require the court of appeal to appoint
counsel for the child in subsequent appellate proceedings unless the
court finds that the child would not benefit from the appointment of
counsel. The bill would require the Judicial Council to
implement this provision by promulgating a rule of court by January
1, 2008, as specified. The bill would also require the Judicial
Council to report to the Legislature, by an unspecified date,
information regarding caseload standards for counsel representing
children before the juvenile court.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. On or before ____, the Judicial Council
shall report to the Legislature the following information regarding
caseload standards established pursuant to Section 317 of the Welfare
and Institutions Code:
(a) Steps taken and progress made toward developing caseload
standards.
(b) The efforts made and the efficacy of putting caseload
standards in place for counsel representing dependent children.
(c) Any resources, support, or recommendations that might help
propel these efforts and ensure implementation statewide of
reasonable caseloads for dependency attorneys.
SEC. 2. Section 317 of the Welfare and
Institutions Code is amended to read:
317. (a) When it 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.
(b) When 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, unless
the court finds that the parent or guardian has made a knowing and
intelligent waiver of counsel as provided in this section.
(c) Where If a child is
not represented by counsel, the court shall appoint counsel for the
child unless the court finds that the child would not benefit from
the appointment of counsel. The court shall state on the record its
reasons for that finding. A primary responsibility of any counsel
appointed to represent a child pursuant to this section shall be to
advocate for the protection, safety, and physical and emotional
well-being of the child. Counsel for the child may be a district
attorney, public defender, or other member of the bar, provided that
the counsel does not represent another party or county agency whose
interests conflict with the child's. The fact that the district
attorney represents the child 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 assures adequate representation of
the child. The Judicial Council shall promulgate rules of court that
establish caseload standards, training requirements, and guidelines
for appointed counsel for children and shall adopt rules as required
by Section 326.5 no later than July 1, 2001.
(d) The counsel appointed by the court shall represent the parent,
guardian, or child at the detention hearing and at all subsequent
proceedings before the juvenile court. Counsel shall continue to
represent the parent or child unless relieved by the court upon the
substitution of other counsel or for cause. The representation shall
include representing the parent or the child in termination
proceedings and in those proceedings relating to the institution or
setting aside of a legal guardianship.
(e) The counsel for the child shall be charged in general with the
representation of the child's interests. To that end, the 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 he or she
shall examine and cross-examine witnesses in both the adjudicatory
and dispositional hearings. He or she 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. In any case in which the child is four years of age or older,
counsel shall interview the child to determine the child's wishes and
to assess the child's well-being, and shall advise the court of the
child's wishes. Counsel for the child shall not advocate for the
return of the child if, to the best of his or her knowledge, that
return conflicts with the protection and safety of the child. In
addition 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. The
attorney 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. The court shall
take whatever appropriate action is necessary to fully protect the
interests of the child.
(f) Either the child or the 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 so consent , which shall be
presumed if the child is over 12 years of age , may invoke the
psychotherapist-client privilege, physician-patient privilege, and
clergyman-penitent privilege; and 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 holder of these privileges if
the child is found by the court not to be of sufficient age and
maturity to so consent. For the sole purpose of fulfilling his or her
obligation to provide legal representation of the child, counsel for
a child 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 which 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 county expense other than by counsel for the agency,
the court shall first utilize the services of the public defender
prior to appointing private counsel, to provide legal 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
for a parent or guardian at county expense, the court shall first
utilize the services of the alternate public defender, prior to
appointing private counsel, to provide legal 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.
SECTION 1. SEC. 3. Section 395 of
the Welfare and Institutions Code is amended to read:
395. (a) (1) A judgment in a proceeding under Section 300 may be
appealed from in the same manner as any final judgment, and any
subsequent order may be appealed from as from an order after
judgment; but no such judgment. Howe ver,
that order or judgment shall be stayed by the appeal, unless,
pending the appeal, suitable provision is made for the maintenance,
care, and custody of the person alleged or found to come within the
provisions of Section 300, and unless the provision is approved by an
order of the juvenile court. The appeal shall have precedence over
all other cases in the court to which the appeal is taken.
(2) A judgment or subsequent order entered by a referee shall
become appealable whenever proceedings pursuant to Section 252, 253,
or 254 have become completed or, if proceedings pursuant to Section
252, 253, or 254 are not initiated, when the time for initiating the
proceedings has expired.
(3) An appellant unable to afford counsel, shall be provided a
free copy of the transcript in any appeal.
(4) The record shall be prepared and transmitted immediately after
filing of the notice of appeal, without advance payment of fees. If
the appellant is able to afford counsel, the county may seek
reimbursement for the cost of the transcripts under subdivision (d)
of Section 68511.3 of the Government Code as though the appellant had
been granted permission to proceed in forma pauperis.
(b) If a child is not represented by counsel in an appellate
proceeding, the court of appeal shall appoint counsel for
the child unless the court of appeal finds that the child
would not benefit from the appointment of counsel. The court
shall state on the record its reasons for that finding. A primary
responsibility of any counsel appointed to represent a child pursuant
to this subdivision shall be to advocate for the protection, safety,
and physical and emotional well being of the child in any appellate
proceeding. appointment of counsel. Counsel may
not represent another party or county agency whose interests conflict
with the child's interests. The Judicial Council shall
implement this section by promulgating a rule of court on or before
January 1, 2008. That rule shall include, but not be limited to,
guidelines for appointment of counsel, duties and responsibilities of
counsel, and training and experience standards for the attorneys to
be appointed.