BILL ANALYSIS
AB 2480
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CONCURRENCE IN SENATE AMENDMENTS
AB 2480 (Evans)
As Amended August 22, 2006
Majority vote
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|ASSEMBLY: |48-32|(May 31, 2006) |SENATE: |24-14|(August 28, |
| | | | | |2006) |
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Original Committee Reference: JUD.
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 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 Judicial Council (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 specified.
2)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. Such presumption may be rebutted by clear and
convincing evidence.
3)Incorporates changes from SB 678 to prevent chaptering out.
The Senate amendments make the presumption in #3) above
rebuttable by clear and convincing evidence.
EXISTING LAW :
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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.
AS PASSED BY THE ASSEMBLY , this bill was substantially similar
to the version approved by the Senate.
FISCAL EFFECT : According to the Senate Appropriations analysis:
1)JC projects this bill will require counsel to be appointed in
1,288 dependency appeals, based on 2004-05 case data. Of
those cases, 10% are expected to require a full briefing and
90% a letter briefing.
2)Additional costs associated with appellate training and trial
counsel case review prior to making recommendations regarding
appointment of counsel, driving estimated annual costs
beginning in 2008 of $1.291 million.
3)Costs for JC to complete the report on caseload standards in
dependency proceedings should be absorbable within existing
budgetary allocations.
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 two 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
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other children in such cases, as provided. Second, 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."
SB 2160 (Schiff), Chapter 450, Statutes of 2000, directs 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
Representation, Administration, Funding and Training 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
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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.]
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
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)
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319-2334
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