BILL NUMBER: AB 2480 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 26, 2006
AMENDED IN ASSEMBLY APRIL 18, 2006
AMENDED IN ASSEMBLY MARCH 27, 2006
INTRODUCED BY Assembly Member Evans
FEBRUARY 23, 2006
An act to amend 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
clergy-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 , in any
appellate proceeding in which the child is an appellant, to
appoint separate 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 also require the court of appeal, if the child is
not an appellant, to appoint separate counsel for the child if the
court of appeal determines, after considering recommendations of the
trial counsel or guardian ad litem for the child, that appointment of
counsel would benefit the child . The bill would
require the Judicial Council to implement this provision by
promulgating a rule of court by January 1, 2008
July, 1, 2007 , as specified. The
The bill would also require the Judicial Council to
report to the Legislature, by January July
1, 2008, information regarding caseload standards for
counsel representing children before the juvenile court
the status of appellate representation of dependent children,
the results of implementing those provisions, and other
recommendations regarding the representation of dependent
children in appellate proceedings. The bill would further
require the Judicial Council to report to the Legislature by January
1, 2008, information regarding case load standards for counsel
representing children before the juvenile court .
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. On or before January 1, 2008, 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 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 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 interests.
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 ensures 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
clergy-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.
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 in the same manner as any final judgment, and any subsequent
order may be appealed as an order after judgment. However, 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. 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.
(b) (1) In any appellate proceeding in which the child is an
appellant, the court of appeal shall appoint separate counsel for the
child. If the child is not an appellant, the court of appeal shall
appoint separate counsel for the child if the court of appeal
determines, after considering the recommendation of the trial counsel
or guardian ad litem appointed for the child pursuant to subdivision
(e) of Section 317, Section 326.5, and California Rule of Court
1448, that appointment of counsel would benefit the child. In order
to assist the court of appeal in making its determination under this
subdivision, the trial counsel or guardian ad litem shall make a
recommendation to the court of appeal that separate counsel be
appointed in any case in which the trial counsel or guardian ad litem
determines that, for the purposes of the appeal, the child's best
interests cannot be protected without the appointment of separate
counsel, and shall set forth the reasons why the appointment is in
the child's best interests. The court of appeal shall consider that
recommendation when determining whether the child would benefit from
the appointment of counsel. The Judicial Council shall implement this
provision by adopting a rule of court on or before July 1, 2007, to
set forth the procedures by which the trial counsel or guardian ad
litem may participate in an appeal, as well as the factors to be
considered by the trial counsel or guardian ad litem in making a
recommendation to the court of appeal, including, but not limited to,
the extent to which there exists a potential conflict between the
interests of the child and the interests of any respondent.
(2) The Judicial Council shall report to the Legislature on or
before July 1, 2008, information regarding the status of appellate
representation of dependent children, the results of implementing
this subdivision, any recommendations regarding the representation of
dependent children in appellate proceedings made by the California
Judicial Council's Blue Ribbon Commission on Children in Foster Care,
any actions taken, including rules of court proposed or adopted, in
response to those recommendations or taken in order to comply with
the Child Abuse Prevention and Treatment Act, as well as any
recommendations for legislative change that are deemed necessary to
protect the best interests of dependent children in appellate
proceedings or ensure compliance with the Child Abuse Prevention and
Treatment Act.