BILL NUMBER: AB 131 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 24, 2009
AMENDED IN ASSEMBLY MARCH 11, 2009
INTRODUCED BY Assembly Member Evans
JANUARY 20, 2009
An act to amend Section 68085.1 of the Government Code, and to
amend Sections 317, 903.1, and 903.45 of the Welfare and Institutions
Code, relating to juvenile court costs.
LEGISLATIVE COUNSEL'S DIGEST
AB 131, as amended, Evans. Juvenile proceedings: costs.
Existing law provides for the appointment of counsel to represent
a parent or guardian of a child, or the child, in juvenile court
proceedings if the parent or guardian is unable to afford counsel.
Existing law also provides that the father, mother, spouse, or other
person liable for the support of the minor shall be liable to the
county for those costs, except as specified, and, more generally, for
specified other costs, including the reasonable costs of support of
the minor while the minor is placed, detained in, or committed to,
any institution pursuant to an order of the juvenile court or
pursuant to the authority of a peace officer to take a minor into
temporary custody.
Existing law authorizes the board of supervisors to designate a
county financial evaluation officer to make financial evaluations of
liability for reimbursement of the costs described above, as
specified, and authorizes that officer to petition the court for an
order requiring the person who is determined to be financially
responsible to pay the costs.
This bill would expand the provisions described above to
specifically provide that the persons who are liable for the support
of the minor shall also be liable for the cost to the county or the
court for the cost of legal services rendered to the minor, except
under specified circumstances. The bill would additionally authorize
the court to designate a financial evaluation officer who would have
the same authority described above.
The bill would require the Judicial Council to establish a cost
recovery program , including a specified statewide standard for
determining the ability to pay, to collect reimbursements for
counsel appointed by the court to represent parents or minors, as
specified. The bill would also make related and technical changes.
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. Section 68085.1 of the Government Code is amended to
read:
68085.1. (a) This section applies to all fees and fines that are
collected on or after January 1, 2006, under all of the following:
(1) Sections 177.5, 209, 403.060, 491.150, 631.3, 683.150,
704.750, 708.160, 724.100, 1134, 1161.2, 1218, and 1993.2 of,
subdivision (g) of Section 411.20 and subdivisions (c) and (g) of
Section 411.21 of, and Chapter 5.5 (commencing with Section 116.110)
of Title 1 of Part 1 of, the Code of Civil Procedure.
(2) Section 3112 of the Family Code.
(3) Section 31622 of the Food and Agricultural Code.
(4) Subdivision (d) of Section 6103.5, Sections 68086 and 68086.1,
Article 6 (commencing with Section 68630) of Chapter 2, Sections
68926.1 and 69953.5, and Chapter 5.8 (commencing with Section 70600).
(5) Section 103470 of the Health and Safety Code.
(6) Subdivisions (b) and (c) of Section 166 and Section 1214.1 of
the Penal Code.
(7) Sections 1835, 1851.5, 7660, and 13201 of the Probate Code.
(8) Sections 14607.6 and 16373 of the Vehicle Code.
(9) Section 71386 of this code, Sections 304, 7851.5, and 9002 of
the Family Code, Section 1513.1 of the Probate Code, and Section
903.1 of the Welfare and Institutions Code, if the reimbursement is
for expenses incurred by the court.
(10) Section 3153 of the Family Code, if the amount is paid to the
court for the cost of counsel appointed by the court to represent a
child.
(b) On and after January 1, 2006, each superior court shall
deposit all fees and fines listed in subdivision (a), as soon as
practicable after collection and on a regular basis, into a bank
account established for this purpose by the Administrative Office of
the Courts. Upon direction of the Administrative Office of the
Courts, the county shall deposit civil assessments under Section
1214.1 of the Penal Code and any other money it collects under the
sections listed in subdivision (a) as soon as practicable after
collection and on a regular basis into the bank account established
for this purpose and specified by the Administrative Office of the
Courts. The deposits shall be made as required by rules adopted by,
and financial policies and procedures authorized by, the Judicial
Council under subdivision (a) of Section 77206. Within 15 days after
the end of the month in which the fees and fines are collected, each
court, and each county that collects any fines or fees under
subdivision (a), shall provide the Administrative Office of the
Courts with a report of the fees by category as specified by the
Administrative Office of the Courts. The Administrative Office of the
Courts and any court may agree upon a time period greater than 15
days, but in no case more than 30 days after the end of the month in
which the fees and fines are collected. The fees and fines listed in
subdivision (a) shall be distributed as provided in this section.
(c) (1) Within 45 calendar days after the end of the month in
which the fees and fines listed in subdivision (a) are collected, the
Administrative Office of the Courts shall make the following
distributions:
(A) To the small claims advisory services, as described in
subdivision (f) of Section 116.230 of the Code of Civil Procedure.
(B) To dispute resolution programs, as described in subdivision
(b) of Section 68085.3 and subdivision (b) of Section 68085.4.
(C) To the county law library funds, as described in Sections
116.230 and 116.760 of the Code of Civil Procedure, subdivision (b)
of Section 68085.3, subdivision (b) of Section 68085.4, and Section
70621 of this code, and Section 14607.6 of the Vehicle Code.
(D) To the courthouse construction funds in the Counties of
Riverside, San Bernardino, and San Francisco, as described in
Sections 70622, 70624, and 70625.
(2) If any distribution under this subdivision is delinquent, the
Administrative Office of the Courts shall add a penalty to the
distribution as specified in subdivision (i).
(d) Within 45 calendar days after the end of the month in which
the fees and fines listed in subdivision (a) are collected, the
amounts remaining after the distributions in subdivision (c) shall be
transmitted to the State Treasury for deposit in the Trial Court
Trust Fund and other funds as required by law. This remittance shall
be accompanied by a remittance advice identifying the collection
month and the appropriate account in the Trial Court Trust Fund or
other fund to which it is to be deposited. Upon the receipt of any
delinquent payment required under this subdivision, the Controller
shall calculate a penalty as provided under subdivision (i).
(e) From the money transmitted to the State Treasury under
subdivision (d), the Controller shall make deposits as follows:
(1) Into the State Court Facilities Construction Fund, the Judges'
Retirement Fund, and the Equal Access Fund, as described in
subdivision (c) of Section 68085.3 and subdivision (c) of Section
68085.4.
(2) Into the Health Statistics Special Fund, as described in
subdivision (b) of Section 70670 of this code and Section 103730 of
the Health and Safety Code.
(3) Into the Family Law Trust Fund, as described in Section 70674.
(4) Into the Immediate and Critical Needs Account of the State
Court Facilities Construction Fund, established in Section 70371.5,
as described in Sections 68085.3, 68085.4, and 70657.5, and
subdivision (e) of Section 70617.
(5) The remainder of the money shall be deposited into the Trial
Court Trust Fund.
(f) The amounts collected by each superior court under Section
116.232, subdivision (g) of Section 411.20, and subdivision (g) of
Section 411.21 of the Code of Civil Procedure, Sections 304, 3112,
3153, 7851.5, and 9002 of the Family Code, subdivision (d) of Section
6103.5, Article 6 (commencing with Section 68630) of Chapter 2, and
Sections 68926.1, 69953.5, 70627, 70631, 70640, 70661, 70678, and
71386 of this code, and Sections 1513.1, 1835, and 1851.5 of the
Probate Code shall be added to the monthly apportionment for that
court under subdivision (a) of Section 68085.
(g) If any of the fees provided in subdivision (a) are partially
waived by court order or otherwise reduced, and the fee is to be
divided between the Trial Court Trust Fund and any other fund or
account, the amount of the reduction shall be deducted from the
amount to be distributed to each fund in the same proportion as the
amount of each distribution bears to the total amount of the fee. If
the fee is paid by installment payments, the amount distributed to
each fund or account from each installment shall bear the same
proportion to the installment payment as the full distribution to
that fund or account does to the full fee. If a court collects a fee
that was incurred before January 1, 2006, under a provision that was
the predecessor to one of the paragraphs contained in subdivision
(a), the fee may be deposited as if it were collected under the
paragraph of subdivision (a) that corresponds to the predecessor of
that paragraph and distributed in prorated amounts to each fund or
account to which the fee in subdivision (a) must be distributed.
(h) Except as provided in Sections 470.5 and 6322.1 of the
Business and Professions Code, and Sections 70622, 70624, and 70625
of this code, no agency may take action to change the amounts
allocated to any of the funds described in subdivision (c), (d), or
(e).
(i) The amount of the penalty on any delinquent payment under
subdivision (c) or (d) shall be calculated by multiplying the amount
of the delinquent payment at a daily rate equivalent to 11/2 percent
per month for the number of days the payment is delinquent. The
penalty shall be paid from the Trial Court Trust Fund. Penalties on
delinquent payments under subdivision (d) shall be calculated only on
the amounts to be distributed to the Trial Court Trust Fund and the
State Court Facilities Construction Fund, and each penalty shall be
distributed proportionately to the funds to which the delinquent
payment was to be distributed.
(j) If a delinquent payment under subdivision (c) or (d) results
from a delinquency by a superior court under subdivision (b), the
court shall reimburse the Trial Court Trust Fund for the amount of
the penalty. Notwithstanding Section 77009, any penalty on a
delinquent payment that a court is required to reimburse pursuant to
this section shall be paid from the court operations fund for that
court. The penalty shall be paid by the court to the Trial Court
Trust Fund no later than 45 days after the end of the month in which
the penalty was calculated. If the penalty is not paid within the
specified time, the Administrative Office of the Courts may reduce
the amount of a subsequent monthly allocation to the court by the
amount of the penalty on the delinquent payment.
(k) If a delinquent payment under subdivision (c) or (d) results
from a delinquency by a county in transmitting fees and fines listed
in subdivision (a) to the bank account established for this purpose,
as described in subdivision (b), the county shall reimburse the Trial
Court Trust Fund for the amount of the penalty. The penalty shall be
paid by the county to the Trial Court Trust Fund no later than 45
days after the end of the month in which the penalty was calculated.
SEC. 2. Section 317 of the Welfare and Institutions Code is
amended to read:
317. (a) (1) 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.
(2) When it appears to the court that a parent or Indian custodian
in an Indian child custody proceeding desires counsel but is
presently unable to afford and cannot for that reason employ counsel,
the provisions of subsection (b) of Section 1912 of the Indian Child
Welfare Act (25 U.S.C. Sec. 1901 et seq.) and Section 23.13 of Title
25 of the Code of Federal Regulations are applicable.
(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 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, guardian, or child unless relieved by the court
upon the substitution of other counsel or for cause. The
representation shall include representing the parent, guardian, 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, subject to rebuttal by clear and convincing evidence, if
the child is over 12 years of age, may invoke the
psychotherapist-client privilege, physician-patient privilege, and
clergyman-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.
(i) The Judicial Council shall establish a cost recovery program
to collect reimbursements for counsel appointed by the court
pursuant to this section to represent parents or minors as
authorized by Section 903.1. As part of the cost recovery
program, the Judicial Council shall develop a statewide standard for
determining the ability to pay reimbursements for counsel, which
shall at a minimum include the family's income, their necessary
obligations, the number of individuals dependent on this income, and
the cost-effectiveness of the collection. All funds recovered
by this program shall be utilized to reduce caseloads, for attorneys
appointed by the court, to the caseload standard approved by the
Judicial Council. Priority shall be given to those courts with the
highest attorney caseloads that also demonstrate the ability to
immediately improve outcomes for parents and children as a result of
lower attorney caseloads.
SEC. 3. Section 903.1 of the Welfare and Institutions Code is
amended to read:
903.1. (a) The father, mother, spouse, or other person liable for
the support of a minor, the estate of that person, and the estate of
the minor, shall be liable for the cost to the county or the court,
whichever entity incurred the expenses, of legal services rendered to
the minor by an attorney pursuant to an order of the juvenile court.
The father, mother, spouse, or other person liable for the support
of a minor and the estate of that person shall also be liable for any
cost to the county or the court of legal services rendered directly
to the father, mother, or spouse, of the minor or any other person
liable for the support of the minor, in a dependency proceeding by an
attorney appointed pursuant to an order of the juvenile court. The
liability of those persons (in this article called relatives) and
estates shall be a joint and several liability.
(b) Notwithstanding subdivision (a), the father, mother, spouse,
or other person liable for the support of the minor, the estate of
that person, or the estate of the minor, shall not be liable for the
costs of any of the legal services provided to any person described
in this section if a petition to declare the minor a dependent child
of the court pursuant to Section 300 is dismissed at or before the
jurisdictional hearing.
SEC. 4. Section 903.45 of the Welfare and Institutions Code is
amended to read:
903.45. (a) The board of supervisors or the court may designate a
financial evaluation officer pursuant to Section 27750 of the
Government Code to make financial evaluations of liability for
reimbursement pursuant to Sections 207.2, 903, 903.1, 903.2, 903.25,
903.3, and 903.5, and other reimbursable costs allowed by law, as set
forth in this section.
(b) In any county where a board of supervisors or the court has
designated a financial evaluation officer, the juvenile court shall,
at the close of the disposition hearing, order any person liable for
the cost of support, pursuant to Section 903, the cost of legal
services as provided for in Section 903.1, probation costs as
provided for in Section 903.2, or any other reimbursable costs
allowed under this code, to appear before the financial evaluation
officer for a financial evaluation of his or her ability to pay those
costs; and if the responsible person is not present at the
disposition hearing, the court shall cite him or her to appear for
such a financial evaluation. In the case of a parent, guardian, or
other person assessed for the costs of transport, food, shelter, or
care of a minor under Section 207.2 or 903.25, the juvenile court
shall, upon request of the county probation department, order the
appearance of the parent, guardian, or other person before the
financial evaluation officer for a financial evaluation of his or her
ability to pay the costs assessed.
If the financial evaluation officer determines that a person so
responsible has the ability to pay all or part of the costs, the
financial evaluation officer shall petition the court for an order
requiring the person to pay that sum to the county or court. If the
parent or guardian is liable for costs for legal services pursuant to
Section 903.1, the parent or guardian has been reunified with the
child pursuant to a court order, and the court or financial officer
determines that repayment of the costs would harm the ability of the
parent or guardian to support the child, then the financial officer
shall not petition the court for an order of repayment, and the court
shall not make that order. In addition, if the parent or guardian is
currently receiving reunification services, and the court finds that
repayment by the parent or guardian will pose a barrier to
reunification with the child because it will limit the ability of the
parent or guardian to comply with the requirements of the
reunification plan or compromise the parent's or guardian's current
or future ability to meet the financial needs of the child, the court
shall not order repayment by the parent or guardian. In evaluating a
person's ability to pay under this section, the financial evaluation
officer and the court shall take into consideration the family's
income, the necessary obligations of the family, and the number of
persons dependent upon this income. Any person appearing for a
financial evaluation shall have the right to dispute the financial
evaluation officer's determination, in which case he or she shall be
entitled to a hearing before the juvenile court. The financial
evaluation officer at the time of the financial evaluation shall
advise such a person of his or her right to a hearing and of his or
her rights pursuant to subdivision (c).
At the hearing, any person so responsible for costs shall be
entitled to have, but shall not be limited to, the opportunity to be
heard in person, to present witnesses and other documentary evidence,
to confront and cross-examine adverse witnesses, to disclosure of
the evidence against him or her, and to receive a written statement
of the findings of the court. The person shall have the right to be
represented by counsel, and, when the person is unable to afford
counsel, the right to appointed counsel. If the court determines that
the person has the ability to pay all or part of the costs,
including the costs of any counsel appointed to represent the person
at the hearing, the court shall set the amount to be reimbursed and
order him or her to pay that sum to the county in a manner in which
the court believes reasonable and compatible with the person's
financial ability.
If the person or persons, after having been ordered to appear
before the financial evaluation officer, have been given proper
notice and fail to appear as ordered, the financial evaluation
officer shall recommend to the court that he, she, or they be ordered
to pay the full amount of the costs. Proper notice to him, her, or
them shall contain all of the following:
(1) That he, she, or they have a right to a statement of the costs
as soon as it is available.
(2) His, her, or their procedural rights under Section 27755 of
the Government Code.
(3) The time limit within which his, her, or their appearance is
required.
(4) A warning that if he, she, or they fail to appear before the
financial evaluation officer, the officer will recommend that the
court order him, her, or them to pay the costs in full.
If the financial evaluation officer determines that the person or
persons have the ability to pay all or a portion of these costs, with
or without terms, and he, she, or they concur in this determination
and agree to the terms of payments, the financial evaluation officer,
upon his or her written evaluation and the person's or persons'
written agreement, shall petition the court for an order requiring
him, her, or them to pay that sum to the county or the court in a
manner which is reasonable and compatible with his, her, or their
financial ability. This order may be granted without further notice
to the person or persons, provided a copy of the order is served on
him, her, or them by mail.
However, if the financial evaluation officer cannot reach an
agreement with the person or persons with respect to either the
liability for the costs, the amount of the costs, his, her, or their
ability to pay the same, or the terms of payment, the matter shall be
deemed in dispute and referred by the financial evaluation officer
back to the court for a hearing.
(c) At any time prior to the satisfaction of a judgment entered
pursuant to this section, a person against whom the judgment was
entered may petition the rendering court to modify or vacate the
judgment on the basis of a change in circumstances relating to his or
her ability to pay the judgment.
(d) Execution may be issued on the order in the same manner as on
a judgment in a civil action, including any balance remaining unpaid
at the termination of the court's jurisdiction over the minor.