BILL ANALYSIS
AB 2480
Page 1
ASSEMBLY THIRD READING
AB 2480 (Evans)
As Amended May 26, 2006
Majority vote
JUDICIARY 6-3 APPROPRIATIONS
(vote not available)
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|Ayes:|Jones, Evans, Laird, | | |
| |Levine, Lieber, Monta?ez | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Evans, Haynes, Leslie | | |
| | | | |
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SUMMARY : Requires representation of children in appellate
proceedings in dependency cases, as specified, and presumes
children over 12 years hold their own evidentiary privileges.
Specifically, this bill :
1)Requires the Judicial Council (JC), by January 1, 2008, 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 appellate-child
under the jurisdiction of the dependency court in an appellate
proceeding. Permits the court to appoint counsel in an
appellate proceeding where the child is not the appellate if
the court determines, after considering the recommendation of
trial counsel or the guardian ad litem appointed for the
child, as specified, that the child would benefit from the
appointment. Directs JC, by July 1, 2007, to adopt a rule of
court regarding factors to be considered by the trial counsel
and the guardian ad litem for making their recommendations to
the court. Requires JC, by July 1, 2008, report to the
Legislature on appellate representation of children, as
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specified.
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 clergy-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.
2)Requires appointed counsel to have a caseload and training
that assures adequate representation of the child. Requires
JC, by July 1, 2001, to promulgate rules of court that
establish caseload standards, training requirements and
guidelines for appointment of counsel under 1), above.
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.
FISCAL EFFECT : According to the Assembly Appropriations
Committee:
1)The JC estimates a cost for legal counsel of approximately
$1.5 million.
2)Minor absorbable costs for JC to establish caseload standards
and training requirements for appointed counsel.
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 children who are the appellate in appellate proceedings, and
other children in such cases, as provided. Second, this bill
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directs JC 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 years 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
establish an age-based presumption of ability and maturity to
consent."
SB 2160 (Schiff), Chapter 450, Statutes of 2000, directed JC, by
July 1, 2001, to promulgate rules to establish caseload
standards, training requirements, and guidelines for appointment
of counsel for children in dependency cases. JC 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.
JC began testing the feasibility of the standards and
recommendations of the report through the Dependency
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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 are currently testing the
recommendations through a centralized dependency counsel
administrative model.
This bill requires that a court appoint counsel for an
appellate-child under the jurisdiction of the dependency court
in an appellate proceeding. This bill also permits the court to
appoint counsel in an appellate proceeding where the child is
not the appellate if the court determines, after considering the
recommendation of trial counsel or the guardian ad litem
appointed for the child, as specified, that the child would
benefit from the appointment.
This is an expansion of the current requirement, which is
limited only to counsel at the trial court 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,
who may have conflicting interests. A publication of JC
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 JC, as of January 1, 2008, 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. Additionally, this bill requires
JC, by July 1, 2008, to report to the Legislature on appellate
representation of children, as specified.
SB 2160 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
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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
these professionals.
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334
FN: 0014806