BILL ANALYSIS
AB 131
Page 1
Date of Hearing: March 17, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 131 (Evans) - As Amended: March 11, 2009
As Proposed to be Amended
SUBJECT : COUNSEL IN JUVENILE PROCEEDINGS: COST RECOVERY
KEY ISSUE : SHOULD THE JUDICIAL COUNCIL ESTABLISH A SYSTEM TO
RECOVER THE COSTS OF APPOINTED COUNSEL IN DEPENDENCY CASES FROM
FINANCIALLY ABLE PARENTS, AND SHOULD THOSE RECOVERED FUNDS BE
USED TO REDUCE DEPENDENCY COUNSEL'S HIGH CASELOADS?
SYNOPSIS
This bill, sponsored by the Judicial Council, establishes a
program whereby parents who have the ability to do so would be
required to reimburse the cost of providing counsel to parents
and children in dependency actions. Quite appropriately, in
order to best protect the child in a dependency case, the bill
prevents repayment if doing so would harm the parent's ability
to support the child or pose a barrier to reunification.
Amendments agreed to by the author direct the Judicial Council
to develop a statewide repayment standard based on ability to
pay. This change will ensure that struggling families, who
cannot afford to, are not asked to repay the costs of dependency
counsel and that there is a uniform standard across the state.
The bill directs that any money collected under the
cost-recovery program be used to reduce caseloads for dependency
counsel. According to Judicial Council, reduced caseloads lead
to improved child well-being outcomes, including decreased time
for family reunification, less reentry into the foster care
system, decreased time to guardianship, and increased placement
with at least some siblings. The Judicial Council has adopted
caseload standards of 188 clients per dependency attorney, but
the courts lack sufficient funding to implement this
recommendation. Judicial Council estimates that it will cost an
additional $57.1 million to implement the adopted caseload
standard. It is estimated that the cost-recovery program under
this bill will generate between $3.3 million and $4.8 million
annually. There is no known opposition to the bill.
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FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SUMMARY : Requires Judicial Council to establish a cost-recovery
program for appointed counsel in dependency cases.
Specifically, this bill :
1)Requires the Judicial Council to establish a cost-recovery
program to collect reimbursements for counsel appointed by the
court to represent parents or their children in dependency
cases. Requires the Judicial Council to develop a statewide
standard for determining ability to pay reimbursements for
counsel, considering, at a minimum, the family's income, their
necessary obligations, the number of individuals dependent on
this income, and the cost-effectiveness of the collection.
Requires that all funds collected through this reimbursement
program be used to reduce dependency counsel caseloads to
specified levels. Provides that priority for these recovered
funds be given to courts with the highest caseloads and that
have also demonstrated the ability to immediately improve
outcomes for parents and children as the result of reduced
caseloads.
2)Provides that a person liable for support of a minor shall be
liable for the costs to the court which incurred the expense
for legal services rendered to the minor by an attorney.
3)Allows the court to designate a financial evaluation officer
to make financial evaluations of liability for specified
reimbursement programs, including reimbursement for legal
services rendered to a minor and specifies the procedure for
doing so.
4)If either the court or the financial officer determines that
repayment of costs for counsel would harm the ability of a
reunified parent or guardian to support the child or pose a
barrier to reunification for families receiving reunification
services, provides that the financial officer shall not
petition for repayment and the court shall not issue an order
for repayment.
5)Makes technical corrections to court fee reference sections.
EXISTING LAW :
1)Permits the court to appoint counsel in a dependency case for
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a parent or guardian of a dependent child when it appears to
the court that the parent or guardian wants counsel but is
currently unable to afford counsel. Requires the court to
appoint counsel when the child is or may be placed in
out-of-home care, except as specified. (Welfare &
Institutions Code section 317(a), (b). Unless otherwise
stated, all further statutory references are to the Welfare &
Institutions Code.)
2)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.
Requires appointed counsel to have caseload and training that
assures adequate representation of the child. (Section
317(c); Rule of Court 5.660.)
3)Provides that a person liable for support of a minor shall be
liable to the county for the costs of legal services rendered
to the minor by an attorney. Provides that there is no
liability for legal services if the petition to declare the
minor a dependent of the court is dismissed at or before the
jurisdictional hearing. (Section 903.1.)
4)Allows a county board of supervisors to designate a financial
evaluation officer to make financial evaluations of liability
for specified reimbursement programs, including reimbursement
for legal services rendered to a minor, and specifies the
procedure for doing so. (Section 903.45.)
COMMENTS : Current law makes parents who have the ability to pay
responsible for the costs of counsel provided in both dependency
and delinquency actions. The county is responsible for paying
for appointed counsel in delinquency cases and the court is
responsible in dependency cases. This bill, sponsored by the
Judicial Council, establishes a program whereby parents who have
the ability to do so would be required to reimburse the cost of
providing counsel to parents and children in dependency actions.
The bill specifically prevents repayment if doing so would harm
the parent's ability to support the child or pose a barrier to
reunification, thus ensuring that the best interests of the
child are paramount. The bill directs that any money collected
under this program be used to reduce caseloads for dependency
counsel. According to the author:
AB 131 would allow the courts the ability to seek
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reimbursement for the costs they incur in providing
counsel services in dependency cases. In addition,
the bill would require the court to establish a
cost-recovery program to collect these reimbursements,
it would authorize the courts to designate a financial
evaluation officer to make an evaluation of the
persons liable for the cost of support and of his or
her ability to pay all or portion of those costs, and
it would require that the funds collected be used to
reduce attorney caseloads for these cases consistent
with the caseload standards approved by the Judicial
Council in 2007 pursuant to Section 317 of the Welfare
and Institutions Code. Priority for these funds will
be given to the courts with the highest attorney
caseloads, which also demonstrate the ability to
immediately improve outcomes for parents and children
as a result of lower attorney caseloads.
Caseload Study : 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 client cases,
though they suggested that an optimum level would be 77.
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 representation
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 - initially began testing the
recommendations through a centralized dependency counsel
administrative model.
The DRAFT program has measured the effect of reduced caseloads
and increased compensation for dependency counsel on improved
well-being outcomes for children, with the average caseload in
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DRAFT counties at 191 clients per attorney. According to a
report by the Judicial Council, the DRAFT counties out performed
non-DRAFT counties in improvements in key outcomes for children,
including, decreased time for family reunification, less reentry
into the foster care system, decreased time to guardianship, and
increased placement with at least some siblings. (Judicial
Council, Dependency Counsel Caseload Standards: A Report to the
California Legislature (April, 2008).)
New Caseload Standard Adopted, but Not Funded : As a result of
the DRAFT program, the Judicial Council adopted a modified
caseload standard of 188 clients per dependency attorney, with a
half-time investigator or social worker per attorney. However,
according to Judicial Council, the courts lack sufficient
funding to implement this recommendation. As of July, 2008,
dependency counsel had an average caseload of 283 clients.
Judicial Council estimates it will cost an additional $57.1
million to implement the adopted caseload standard.
According to a Judicial Council pilot project in San Joaquin and
Stanislaus Counties, between 7 and 10 percent of parents could
afford to provide, on average, $850 in reimbursement for
dependency counsel costs, for a total annual cost recovery of
$3.3 million to $4.8 million. While this cost recovery would
not bridge the $57.1 million funding shortfall, it would provide
some of the funding needed to reduce caseloads for dependency
counsel. The bill provides direction to the court for how to
divide up the new funding: Priority is given to courts with the
highest caseloads that have also demonstrated the ability to
immediately improve outcomes for parents and children as the
result of lower caseloads.
Cost Recovery Program Based on the Ability to Pay of the Parent :
Current law provides that a financial evaluation officer for
the county, in determining a parents' ability to pay, must
consider the family's income, the necessary obligations of the
family, and the number of individuals dependent on that income.
This bill extends the same considerations to a financial
evaluation officer designated by the court. It is important to
ensure that this cost recovery program not be used to further
impoverish already financially struggling families and that cost
recovery efforts do not inadvertently cause families to choose
between repaying their debt to the courts and providing their
families with needed food, shelter and medical care.
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In order to ensure that struggling families, who cannot afford
to, are not asked to repay the costs of dependency counsel and
that there is a uniform standard on ability to pay across the
state, the author has graciously agreed to amend the bill to
require Judicial Council to develop such a standard. The
following amendment to page 9, lines 16-24 of the bill
accomplishes just that:
(i) The Judicial Council shall establish a cost recovery
program to collect reimbursements for counsel appointed by
the court under 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 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.
Prior Legislation : One of the provisions of AB 1873 (Lieu),
2008, would have clarified that a person liable for support of a
minor shall be liable for the costs to the county or the court,
whichever entity incurred the expense, for legal services
rendered to the minor by an attorney. That bill was vetoed for
other reasons.
SB 2160 (Schiff), Chap. 450, Stats 2000, required the court to
appoint counsel in almost all dependency cases. The bill also
required the court to determine, prior to appointment of
counsel, that counsel has a caseload and training that allows
adequate representation of the dependent child.
REGISTERED SUPPORT / OPPOSITION :
Support
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Judicial Council (sponsor)
American Federation of State, County and Municipal Employees,
AFL-CIO
Opposition
None on file
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334