BILL ANALYSIS
AB 2480
Page 1
Date of Hearing: April 4, 2006
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
AB 2480 (Evans) - As Amended: March 27, 2006
SUBJECT : DEPENDENT CHILDREN: Counsel
KEY ISSUES :
1)SHOULD CHILDREN IN DEPENDENCY PROCEEDINGS BE ENTITLED TO
APPOINTED COUNSEL WHEN THEIR CASES ARE ON APPEAL, JUST LIKE
THEY ARE ENTITLED TO COUNSEL AT THE TRIAL COURT LEVEL?
2)SHOULD CHILDREN OVER 12 BE PRESUMED TO BE SUFFICIENTLY MATURE
TO INVOKE EVIDENTIARY PRIVILEGES IN DEPENDENCY PROCEEDINGS?
SYNOPSIS
This bill, sponsored by the Children's Advocacy Institute, the
Children's Law Center of Los Angeles and the National Center for
Youth Law, makes three changes with respect to counsel for
children in dependency cases. First, for dependency cases, this
bill requires the appointment of counsel for unrepresented
children in appellate proceedings. Second, this bill directs
the Judicial Council to report to the Legislature on its
progress regarding implementation of caseload standards for
appointed counsel in dependency cases. Finally, this bill
presumes that a child over 12 is of sufficient age and maturity
to invoke and waive the psychotherapist-client privilege,
physician-patient or clergy-penitent privilege.
In support of the bill, the author states that children are
better protected in legal proceedings by an attorney who
advocates for their welfare, and that, as a matter of due
process, "children should have competent representation through
all stages of the legal process." The sponsors believe this
bill is necessary to help ensure that children in dependency
proceedings "have the protections that will ultimately help them
leave the system and be healthy and productive children and
adults." The Family Law Section of the State Bar support the
bill, if amended, and is working with the sponsors to address
more thoroughly issues surrounding appointment of counsel.
There is no reported opposition.
AB 2480
Page 2
SUMMARY : Requires representation of children in appellate
proceedings in dependency cases, and presumes children over 12
hold their own evidentiary privileges. Specifically, this bill :
1)Requires the Judicial Council, on or before a yet to be
determined date, to report the following to the Legislature
regarding caseload standards for appointed counsel for
children in dependency cases:
a) Progress toward developing caseload standards;
b) Efforts made and efficacy of putting in caseload
standards for counsel in these cases; and
c) Resources, support or recommendations that may ensure
implementation of reasonable caseload standards for
dependency attorneys.
2)Requires that a court appoint counsel for an unrepresented
child under the jurisdiction of the dependency court in an
appellate proceeding unless the court finds the child would
not benefit from the appointment. Directs the Judicial
Council, by January 1, 2008, to promulgate a rule of court for
implementing appointment of counsel, including guidelines for
appointment of counsel and training, experience, duties and
responsibilities of appointed counsel.
3)Presumes that a child who is over 12 is of sufficient age and
maturity to consent to invoke the psychotherapist-client
privilege, physician-patient privilege, and clergyman-penitent
privilege.
EXISTING LAW :
1)Requires the court to appoint counsel for an unrepresented
child in a dependency case, unless the court finds that the
child would not benefit from the appointment of counsel.
(Welfare & Institutions Code section 317(c); Rule of Court
1438. Unless otherwise stated, all further statutory
references are to the Welfare & Institutions Code.)
2)Requires appointed counsel to have a caseload and training
that assures adequate representation of the child. Requires
the Judicial Council, by July 1, 2001, to promulgate rules of
court that establish caseload standards, training requirements
and guidelines for appointment of counsel under #1, above.
(Section 317(c).)
AB 2480
Page 3
3)Allows the child in a dependency proceeding 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 so
consent, to invoke the psychotherapist-client privilege,
physician-patient privilege, and clergyman-penitent privilege.
Provides that if the child invokes the privilege, counsel may
not waive it, but if counsel invokes the privilege, the child
may waive it. (Section 317(f).)
FISCAL EFFECT : The bill as currently in print is keyed fiscal.
COMMENTS : This bill, sponsored by the Children's Advocacy
Institute, the Children's Law Center of Los Angeles and the
National Center for Youth Law, makes three changes with respect
to counsel for children in dependency cases. First, for
dependency cases, this bill requires the appointment of counsel
for unrepresented children in appellate proceedings. Second,
this bill directs the Judicial Council to report to the
Legislature on its progress regarding implementation of caseload
standards for appointed counsel in dependency cases. Finally,
this bill presumes that a child over 12 is of sufficient age and
maturity to invoke and waive the psychotherapist-client
privilege, physician-patient or clergy-penitent privilege.
In support of the bill, the author states that children are
better protected in legal proceedings by an attorney who
advocates for their welfare. "A dependent child is not
guaranteed the same level of representation on appeal, however,
despite the fact that appellate decisions are no less
significant and often have greater long-term impact than those
made at the trial level. As a matter of due process children
should have competent representation through all stages of the
legal process."
The author also contends that presuming that a child older than
12 is of sufficient maturity to invoke or waive can avoid
"delays in the proceedings and in the child's treatment that are
not in the child's best interest. Establishing the presumption
at age 12 would be consistent with other areas of dependency
law, such as guardianship and adoption which both require the
consent of a child age 12 or older. . . . If a child is not of
adequate maturity to consent, the court can always step in and
make that determination - the change in the law would simply
AB 2480
Page 4
establish an age-based presumption of ability and maturity to
consent."
Appointed Counsel for Children in Dependency Proceedings and
Judicial Counsel Reporting : SB 2160 (Schiff), Chap. 450, Stats.
2000, directed the Judicial Council, by July 1, 2001, to
promulgate rules to establish caseload standards, training
requirements and guidelines for appointment of counsel for
children in dependency cases. The Judicial Council promulgated
rules that mandated appointment of counsel for children, at the
trial court level, in almost all cases. In addition, the
Administrative Offices of the Courts contracted with the
American Humane Association to study dependency counsel
caseloads and service delivery. In a June 2004 report, the
American Human Association recommended a maximum caseload per
dependency attorney of 141 cases, though they suggested that an
optimum level would be significantly lower.
The Judicial Council began testing the feasibility of the
standards and recommendations of the report through the
Dependency Representation, Administration, Funding and Training
(DRAFT) pilot program, with the goal of improving
representations of parents and children in dependency cases as
cost-effectively as possible. Ten counties - Imperial, Los
Angeles, Marin, Mendocino, San Diego, San Joaquin, San Luis
Obispo, Santa Barbara, Santa Cruz and Stanislaus - are currently
testing the recommendations through a centralized dependency
counsel administrative model. In a 2005 update of the status of
the DRAFT program, the Judicial Council noted some
accomplishments in the pilot, including reductions in caseloads
for dependency counsel and reductions in administrative costs,
but recommended waiting for another pilot update, due in Augusts
2006, before taking further action.
This bill requires, for unrepresented children in the dependency
system, appointment of counsel in appellate proceedings, unless
the court specifically finds that the child would not benefit
from the appointment. This is an expansion of the current
requirement, which is limited only to counsel at the trial court
level. However, such expansion appears warranted, since the
necessity for appointment of counsel at the trial court is
precisely the same as for appointment at the appellate level.
In both cases, the child's protection, safety and physical and
emotional well-being are at stake, and cannot be adequately
represented by attorneys for either the county or the parents,
AB 2480
Page 5
who may have conflicting interests. A publication of the
Judicial Council recognizes the importance of counsel for
children: "Due process and fundamental fairness require that
children have independent counsel. . . .Experts agree that
independent representation means an attorney for the child who
does not represent the petitioning agency." (Jennifer Walter,
"Averting Revictimization of Children," Journal of the Center
for Children and the Courts , (1999) p. 49.)
This bill also requires the Judicial Council, at an as of yet to
be determined date, to report on steps taken and progress made
toward developing dependency counsel caseload standards and any
resources or recommendations that might help propel these
efforts to ensure implementation of statewide caseload
standards. Given the work that the Judicial Counsel has already
undertaken, it appears reasonable for such report to be
completed by January 1, 2008. Therefore, it is recommended that
this Committee insert January 1, 2008 as the date by which the
Judicial Council has to report to the Legislature on dependency
counsel caseload standards.
Privilege . 2160 (Schiff) also held that 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, may invoke and waive the
psychotherapist-client, physician-patient and clergyman-penitent
privileges. This was intended to ensure that in cases where the
child is a dependent of the court due to abuse or neglect at the
hands of the child's parent or guardian, that the parent or
guardian could not shield his or her behavior from scrutiny by
keeping damaging information hidden from view under the guise of
exercising the child's privilege of confidentiality. This bill
seeks to maintain the privilege with the child or the child's
counsel, but simply holds that a child over 12 is presumed to be
of sufficient age and maturity to invoke or waive the privilege.
A judge, however, could rebut that presumption, and allow the
attorney to either invoke or waive the privilege, even if the
child disagreed.
Ensuring that these privileges can be appropriately protected is
very important for children in dependency proceedings. These
children often rely extensively on doctors, therapists and
clergy in dealing with the very difficult situation they are
facing. Allowing them the ability to invoke or waive the
privilege will help ensure they can be completely honest with
AB 2480
Page 6
these professionals.
ARGUMENTS IN SUPPORT : The Children's Law Center of Los Angeles
writes that while:
[O]ur state has established over time its abiding
commitment to legal counsel for children, the child is
stripped of the right to counsel on appeal. . . . The
lack of counsel on appeal creates a critical and
inexplicable gap in the protection of children's
interests in juvenile court cases. The outcome of an
appeal can have a serious impact on a child's life -
appellate courts consider issues that relate to the
child's current and future safety and welfare,
likelihood of reunifying with family, and chances for
a safe, stable and permanent home.
In support of the privilege presumption, the Children's Advocacy
Institute finds it very alarming that children today, wrestling
with the legal issues of who will raise them, cannot rely on the
confidentiality of their conversations with therapists or
clergy. CAI argues that the presumption, as well as the other
changes in the bill, are necessary. "When the state intervenes
and removes a child from their home, California citizens owe a
special obligation to those children to treat them[,] and the
question of who will raise them[,] with the utmost seriousness,
respect for the child, and somber acknowledgement that the life
and quality of life of one of our children is at stake."
Echoes the National Center for Youth Law: "Probably no part of
the child welfare and foster care system more directly impacts
children and youth than what happens in the court process. AB
2480 will help ensure that these children have the protections
that will ultimately help them leave the system and be healthy
and productive children and adults."
The Family Law Section of the State Bar supports the bill, if
amended, noting that implementing the requirement for dependency
counsel in appellate cases "could be very problematic." Before
Flexcom can offer its unconditional support for the bill, they
offer to work with the sponsors to ensure that implementation
issues are adequately addressed.
AB 2480
Page 7
REGISTERED SUPPORT / OPPOSITION :
Support
Children's Advocacy Institute (sponsor)
National Center for Youth Law (sponsor)
The Children's Law Center of Los Angeles (sponsor)
Family Law Section of the State Bar (if amended)
National Association of Counsel for Children
Opposition
None on file.
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334