BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
AB 2480 A
Assembly Member Evans B
As Amended August 7, 2006
Hearing Date: August 8, 2006 2
Welfare & Institutions Code 4
BCP:cjt 8
0
SUBJECT
Dependent Children: Counsel
DESCRIPTION
This bill would: (1) provide for appellate counsel for
children in dependency proceedings; (2) presume that a
child over the age of 12 is of sufficient maturity to
consent to invoke the psychotherapist-client privilege,
physician patient privilege, and clergy-penitent privilege
in dependency proceedings; and (3) require a Judicial
Council report on caseload standards for appointed counsel
for children in dependency proceedings.
BACKGROUND
Many children are removed from their homes each year due to
abuse or neglect, and placed in the juvenile dependency
court system. Through various proceedings, the dependency
court determines whether family reunification services
should be provided, whether parental rights should be
terminated, and formulates a permanent placement plan for
the child.
In cases where the child is not represented by counsel, the
juvenile dependency court must appoint counsel unless the
child would not benefit from counsel. Prior legislation,
SB 2160 (Schiff, 2000), requires appointed counsel to have
caseload and training sufficient to ensure adequate
representation of the child. Following up on that
requirement, AB 2480 would require the Judicial Council to
(more)
AB 2480 (Evans)
Page 2
report various pieces of information concerning the
caseload of those attorneys.
Current statutory provisions regarding appointment of
counsel for children only apply to dependency court
proceedings at the trial level. While a child may appeal
the decision of the dependency court, that child may be
left without the benefit of separate appellate counsel.
Accordingly, AB 2480 would require the appellate court to
appoint separate counsel for an appellant child, and have
discretion to appoint separate counsel if the child is not
an appellant, based upon the benefit to the child of that
counsel.
Additionally, AB 2480 would presume that a dependent child
over the age of 12 is of sufficient age and maturity to
give informed consent to invoke numerous privileges. In
contrast, current law requires an affirmative demonstration
that the child is of sufficient age and maturity to provide
informed consent.
CHANGES TO EXISTING LAW
1. Existing law allows the juvenile court to adjudge
minor children "dependents" of court in response to
allegations of neglect or abuse. [Welf. & Inst. Code
300 et seq.]
Existing law requires a court to appoint counsel for
children 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 317(c)].
This bill would require a court of appeal to appoint
separate counsel when those children are appellants. If
a child is not the appellant, the court shall appoint
separate counsel for the child if the court determines
that the appointment would benefit the child, after
considering the recommendation of the trial counsel or
the child's guardian ad litem.
This bill would require the Judicial Council to implement
a Rule of Court setting forth procedures by which the
trial counsel or guardian ad litem may participate in an
AB 2480 (Evans)
Page 3
appeal, including factors considered in their
recommendation for appellate counsel.
This bill would require the Judicial Council to report to
the Legislature by July 1, 2008 on the status of
appellate representation of dependent children, results
of the implementation of this bill, and any
recommendations.
2. Existing law allows the child or the child's counsel,
with the informed consent of the child, to invoke the
psychotherapist-client privilege, physician-patient
privilege, and clergy-penitent privilege in a dependency
proceeding. Existing law requires the child to be of
sufficient age and maturity to give their informed
consent. [Welf. & Inst. Code 317(f).]
This bill would presume that a child over the age of 12
is of sufficient age and maturity to give their informed
consent. This bill would allow that presumption to be
rebutted by clear and convincing evidence.
3. Existing law requires appointed counsel to have
caseload and training that ensures adequate
representation of the child. The Judicial Council must
develop rules of court establishing those standards.
[Welf. & Inst. Code 317(c); Rule of Court 1438(d)(6)]
This bill would require the Judicial Council to report to
the Legislature on steps taken to develop caseload
standards, efforts putting those standards into place,
and any additional resources that would assist
implementation of the standards.
COMMENT
1. Stated need for the bill
According to the author, this bill would address three
issues relating to dependent children, all intended to
benefit dependent children.
First, AB 2480 would provide for counsel to dependent
children on appeal. As evidence of the need for the
provision, the author states:
AB 2480 (Evans)
Page 4
[i]t is well established that children are better
served in legal proceedings by an attorney who
advocates only for that child's "protection,
safety, and physical and emotional well-being."
[Welf. & Inst. Code 317(c).] 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.
Second, this bill would address the caseloads of
appointed dependency court attorneys. The author
contends that:
[i]t is statutorily required that children in
California who come before the court due to
allegations of abuse or neglect have a right to
competent counsel . . . This bill [would] direct
the AOC to report back to the legislature
regarding progress made toward developing
caseload standards, recommendations for
implementation statewide of reasonable caseloads,
and obstacles that stand in the way of these
standards, for dependency attorneys.
Finally, the author contends that the current requirement
of allowing a child to invoke certain privileges only if
the court finds the child to be of sufficient age and
maturity may "lead to unnecessary court intervention,
especially for older children." The author states that
this intervention:
can create delays in the proceedings and in the
child's treatment that are not in the child's
best interest. Establishing this presumption at
age 12 would be consistent with other areas of
dependency law, such as guardian ship and
adoption which both require the consent of a
child age 12 or older.
2. Appellate counsel for dependent children
In 2000, SB 2160 (Schiff), created a rebuttable
AB 2480 (Evans)
Page 5
presumption that a juvenile dependency court must appoint
counsel for unrepresented children in dependency
proceedings unless the child would not benefit from that
appointment. That provision applies to trial, but not
appellate counsel for the child. The Children's Law
Center of Los Angeles (CLC), co-sponsor, states that:
[t]he lack of counsel on appeal creates a
critical and inexplicable gap in the protection
of children's interests in juvenile court cases.
The outcome on 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.
Supporters note that case law does provide for the
limited appointment of separate appellate counsel for
dependent children "on appeal of a juvenile dependency
judgment terminating parental rights in situations in
which a conflict of interest exists with counsel for the
governmental entity, or on a showing that the best
interests of the child require the assignment of separate
counsel." [5-171 California Family Law Prac. & Proc. 2d
ed. 171.06; In re Mary C. (1995) 41 Cal. App. 4th 71,
79-80.] Accordingly, AB 2480 would expand the
availability of separate appellate counsel for dependent
children to any appellate proceeding where the child is
an appellant, or when appointment would benefit the child
if the child is not the appellant. In considering
whether the child would benefit from counsel, the court
must consider the recommendation of the trial counsel or
the child's guardian ad litem.
AB 2480 would also require the Judicial Council to adopt
a rule of court by July 1, 2007 to set form procedures by
which the trial counsel or guardian ad litem may
participate in an appeal, as well as factors to be
considered by those individuals when making a
recommendation to the court of appeal. Additionally, the
Judicial Council would have to report on the status,
results of implementation, and any recommendation
regarding the representation of dependent children in
appellate proceedings by July 1, 2008.
AB 2480 (Evans)
Page 6
The Judicial Council, in a support if funded position,
"recognizes that children in dependency proceedings have
vital interests which may require the appointment of
separate counsel in an appellate proceeding, provided
that appropriate funding is provided to meet this
important need." AB 2480 is keyed fiscal and will be
referred to the Senate Appropriations Committee if passed
by this committee.
3. Rebuttable presumption of sufficient age to give
informed consent to invoke various privileges
Under existing law, the invocation of various privileges
prevents the discovery of otherwise relevant information.
From a policy standpoint, "[t]he rules of privilege are
designed to protect personal relationships and other
interests where public policy deems them more important
than the need for evidence." [Koshman v. Superior Court
(1980) 111 Cal. App. 3d 294, 297.] For children in the
juvenile dependency court system, either the child or the
child's counsel, with the child's informed consent, can
invoke numerous privileges. [Welf. & Inst. Code Section
317(f).] According to the committee analysis for SB 2160
(Schiff, 2000), the intent of that provision was to
prevent a child's guardian from invoking those privileges
to shield misconduct.
In order for a child in a dependency proceeding to give
their informed consent to invoke a privilege, that child
must be of sufficient age and maturity to consent. AB
2480 would presume that a child over the age of 12 is of
sufficient age and maturity to provide that informed
consent. The author's recent amendments clarify that the
presumption may be rebutted by clear and convincing
evidence to the contrary.
The National Center on Youth Law (NCYL), co-sponsor,
states that this presumption "will ensure that these
privileges . . . protect youths who are confiding with
therapists and their clergy." NYCL further states that
"[y]outh deserve to hold these privileges to the same
extent that all others who enter into these confidential
relationships."
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The Family Law Section of the State Bar, in opposition,
states that while the section "agree[s] wholeheartedly
with the goal of strengthening the value and importance
of such a privileged therapeutic relationship . . .
[they] definitely do not agree that the proposed language
will in fact remedy the problem stated - more likely it
will exacerbate and worsen the situation." Although
concerns about the rebuttability of the presumption were
addressed through the author's recent amendments, the
section believes that the proper age for the presumption
should be 16, and not 12. The basis for their belief is
that those children may be susceptible to improper
influence, leading to the invoking of the privilege to
shield misconduct.
The sponsors firmly maintain that 12 is an appropriate
age, as evidenced by numerous other instances in the
Welfare & Institutions and Family Codes where children 12
years of age, and younger, take an active part in their
proceedings. For example, children age 12 and older must
be given a chance to review their case plan [Welf & Inst.
Code 16501.1(f)(12), 16010.9(a)(20)], are able to
object to the termination of parental rights [Welf. &
Inst Code 366 (c)(B)], and must be given notice of
dependency proceedings if at least age 10. [Welf. & Inst.
Code 290.1(a)(4), 290.2, 291-5]. Additionally, the
court may rebut the presumption in cases where the child
is unduly influenced by an outside individual to invoke
that presumption.
Considering the involvement of the dependent child in the
development of their case plan, the public policy to
promote disclosure to psychotherapists, clergymembers,
and physicians, and the ability for the presumption to be
rebutted, the presumption at the age of 12 appears
reasonable.
4. Requirement for a Judicial Council report concerning
caseload standards established pursuant to SB 2160
Pursuant to SB 2160, counsel appointed for dependent
children must "have a caseload and training that assures
adequate representation of the child." [Welf. & Inst.
317(c).] To ensure that requirement, the Judicial
Council was required to "promulgate rules of court that
establish caseload standards, training requirements, and
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Page 8
guidelines for appointed counsel for children . . . no
later than July 1, 2001." [Id.]
The author's background materials state that while "the
[Administrative Office of the Courts] conducted an
extensive caseload study over the past few years . . . no
further action has been taken and the required rules have
yet to be promulgated." Accordingly, this bill would
require the Judicial Council, on or before January 1,
2008, to report to the Legislature on:
steps taken and progress made toward developing
caseload standards;
efforts made and the efficacy of putting caseload
standards in place for counsel representing dependent
children; and
resources, support, or recommendations that might
help propel these efforts and ensure implementation
statewide of reasonable caseloads for dependency
attorneys.
The Judicial Council, in support, states that "[t]he
council is currently midway through the Dependency
Representation Administration Funding and Training
(DRAFT) pilot program, which is intended to provide
counsel with better information on maximum and optimal
caseload standards for court appointed counsel in
dependency proceedings, as well as recommendations for
achieving those standards statewide in a cost-effective
manner. As a result the council will be well positioned
to share its findings and recommendations by the January
1, 2008 deadline."
5. Amendment required to correct ambiguous language
concerning the presumption of age and maturity
While the August 7, 2006 amendments were intended to
clarify the rebuttable presumption that the child is of
sufficient age and maturity to give informed consent,
those same amendments could potentially be read to state
that a child is presumed to give their informed consent.
The language in question states:
[e]ither 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
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Page 9
maturity to consent, which shall be presumed,
subject to rebuttal by clear and convincing
evidence, if the child is over 12 years of age . . .
Thus, to prevent any unwanted interpretation of this
section, the following amendments are suggested.
Suggested revision:
Either the child or, if represented, 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 consent, may
invoke . . . Subject to rebuttal by clear and
convincing evidence, a child over 12 years of age
shall be presumed to be of sufficient age and
maturity to consent.
Support: Judicial Council of California; County Welfare
Directors Association of California (CWDA);
Children's Law Center of Los Angles (CLC); Junior
Leagues of California State Public Affairs Committee
(SPAC)
Opposition: Family Law Section of the State Bar
HISTORY
Source: Children's Advocacy Institute; Children's Law
Center of Los Angeles; National Center for Youth Law
Related Pending Legislation: SB 678 (Ducheny), would revise
and recast portions of the Family,
Probate, and Welfare & Institution
Codes that address Indian child
custody proceedings. (This bill will
be heard on August 9, 2006 in the
Assembly Appropriations Committee.)
SB 1667 (Kuehl), would facilitate
foster parent involvement in
dependency review hearings. (This
bill will be heard on August 9, 2006
in the Assembly Appropriations
Committee.)
AB 2480 (Evans)
Page 10
Prior Legislation: AB 1338 (Nation, 2005), would have
required undocumented children in the
dependency system to be provided with an
attorney specializing in immigration.
(Vetoed.)
AB 1895 (Nation, 2004), same as above.
(Vetoed.)
AB 1832 (Pacheco, 2002), would have allowed
psychotherapists to provide certain
information to the court and social worker
regardless of whether the dependent child or
their counsel has invoked the
psychotherapist-patient privilege. (This bill
died in the Senate.)
SB 2160 (Schiff), Chapter 450, Statutes of
2000, presumed that a dependent child would
benefit from counsel, required counsel to have
a caseload and training that allows adequate
representation of the dependent child, and
defined the holder of the
psychotherapist/client, physician/patient, and
clergyman/penitent privileges.
Prior Vote:Asm. Judiciary (Ayes 6, Noes 3)
Asm. Appr. (Ayes 13, Noes 5)
Assembly Floor (Ayes 48, Noes 32)
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