BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 131
Assemblymember Evans
As Amended June 15, 2009
Hearing Date: June 23, 2009
Government Code; Welfare and Institutions Code
KB:jd
SUBJECT
Juvenile Proceedings: Costs
DESCRIPTION
This bill, sponsored by the Judicial Council, would require the
Judicial Council to establish a cost-recovery program for
appointed counsel in dependency cases.
BACKGROUND
In March 2008, Chief Justice Ronald M. George appointed the
California Blue Ribbon Commission on Children in Foster Care
(BRC) to make recommendations for courts and their child welfare
partner agencies to improve safety, permanency, well-being, and
fairness outcomes for dependent children and their families.
The BRC issued its final recommendations to the Judicial Council
in August 2008. This bill, sponsored by the Judicial Council,
would address the BRC's key recommendation that courts ensure
the fairness of dependency proceedings by reducing caseloads for
attorneys who represent children and parents.
CHANGES TO EXISTING LAW
Existing law permits the court to appoint counsel in a
dependency case for 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. Existing law
requires the court to appoint counsel when the child is or may
be placed in out-of-home care, except as specified. (Wel. &
Inst. Code Sec. 317(a), (b).)
(more)
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Existing law 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. Existing rules of court require appointed counsel to
have caseload and training that assures adequate representation
of the child. (Wel. & Inst. Code Sec. 317(c); Rule of Court
5.660.)
Existing law 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. Existing law
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. (Wel. &
Inst. Code Sec. 903.1.)
Existing law 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. (Wel. & Inst. Code Sec.
903.45.)
This bill would provide that 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.
This bill would require 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.
This bill would allow 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.
This bill would provide that, with the consent of the county and
pursuant to its terms and conditions agreed upon by the court
and county, the court may designate a county financial
evaluation officer for the purposes of handling reimbursements
in the cost-recovery program.
This bill would require the Judicial Council to develop a
statewide standard for determining ability to pay reimbursements
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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.
This bill would provide that the financial officer shall not
petition for repayment, and the court shall not issue an order
for repayment 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.
This bill would require the Judicial Council to adopt policies
and procedures allowing a court to recover from the money
collected the costs associated with collecting delinquent
reimbursements. The policies would, at a minimum, be required
to limit the amount of money a court may recover to a reasonable
proportion of the delinquent reimbursements collected and
provide terms and conditions under which a court may use a
third-party to collect delinquent reimbursements.
This bill would require that all funds collected through this
reimbursement program be used to reduce dependency counsel
caseloads to specified levels.
This bill would provide 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.
This bill would make technical corrections to court fee
reference sections.
COMMENT
1. Stated need for the bill
The sponsor states:
Caseloads for attorneys who represent children and parents in
dependency matters far exceed the standard adopted by the
Judicial Council pursuant to Welfare and Institutions Code
section 317. That standard is 188 clients per attorney,
provided that the attorney has a half-time investigator or
social worker assigned to support the attorney. Despite that
standard, the average case load is 273 clients per attorney
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because the funding for counsel in these cases is insufficient
to implement the standard statewide.
Current law (Welfare and Institutions Code, section 903.1)
authorizes the county to seek reimbursement for counsel
provided to a child in either a juvenile delinquency or
dependency action. The county is responsible for providing
counsel in juvenile delinquency cases, but, since state trial
court funding, the court is responsible for providing trial
counsel in dependency cases. However, the current statute
does not authorize the courts to seek reimbursement for the
costs they incur in providing the services in dependency
cases.
This bill would establish 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.
2. Developing and implementing a reduced caseload standard
SB 2160 (Schiff, Chapter 450, Statutes of 2000) amended Section
317 of the Welfare and Institutions Code to require the
appointment of counsel for a child unrepresented by counsel,
unless the court finds the child would not benefit from the
appointment of counsel. SB 2160 also directed the Judicial
Council, by July 1, 2001, to promulgate rules establishing
caseload standards, training requirements, and guidelines for
appointment of counsel for children in dependency cases. In
addition to promulgating a rule that mandates the appointment of
counsel for children subject to dependency proceedings in almost
all cases, the Judicial Council contracted with the American
Humane Association (AHA) to study dependency counsel caseloads
and service delivery. In a report issued in June 2004, the AHA
recommended a maximum caseload of 141 clients per full-time
dependency attorney, with an optimal or best practice, caseload
level of 77 client cases per attorney.
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
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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
DRAFT counties at 191 clients per attorney. The Judicial
Council acknowledged that 191 is a higher caseload than
recommended by the AHA report, but due to fiscal realities, 191
was a more feasible caseload.
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).)
The caseload standard adopted as a result of the DRAFT program
is 188 clients per attorney, which has been modified to take
into account the impact of nonattorney staffing, such as
investigators and social workers, on requisite attorney time.
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 273
clients, and the Judicial Council estimates it will cost an
additional $57.14 million to implement the adopted caseload
standard.
3. This bill would create a cost-recovery program to reduce
caseloads for dependency attorneys
Under current law, the court may appoint counsel in a dependency
case for 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. (Wel. & Inst. Code
Sec. 317.) The court must 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. (Id.)
Parents, or other persons liable for support of a minor, who
have the ability to pay are responsible for the costs of counsel
provided in both dependency and delinquency actions. (Wel. &
Inst. Code Sec. 903.1.) Counties are responsible for providing
counsel in juvenile delinquency cases; however, the court is
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responsible for providing counsel in dependency cases.
This bill would establish 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. Any monies collected pursuant to this
cost-recovery would be used specifically to reduce caseloads for
attorneys in dependency proceedings. Priority would be given to
those 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.
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. (Wel. &
Inst. Code Sec. 903.45.) This bill would extend the same
considerations to a financial evaluation officer designated by
the court. In addition, this bill would provide that the
financial officer shall not petition for repayment, and the
court shall not issue an order for repayment, 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.
In order to further ensure that this cost recovery program does
not adversely affect families who are already struggling
financially, this bill would require the Judicial Council to
develop a statewide standard for determining the ability to pay
reimbursements for counsel. The statewide standard would, at a
minimum, take into consideration the family's income, their
necessary obligations, the number of individuals dependent on
this income, and the cost-effectiveness of the collection.
Finally, this bill would require the Judicial Council to adopt
policies and procedures allowing a court to recover from the
money collected the costs associated with collecting delinquent
reimbursements. The policies would, at a minimum, be required
to limit the amount of money a court may recover to a reasonable
proportion of the delinquent reimbursements collected, and
provide terms and conditions under which a court may use a
third-party to collect delinquent reimbursements. This is
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consistent with other court ordered debt collection programs.
Further, the court would not be allowed to assess the cost of
collection on top of what is owed, and thus could not charge
parents additional amounts associated with the delinquent
payments.
From 2005 to 2007, the Judicial Council implemented a pilot
project in San Joaquin and Stanislaus Counties and found that
between 7 to 10 percent of parents could afford to provide, on
average, $850 in reimbursement for dependency counsel costs.
Since there are 56,000 parents who are represented statewide,
the Judicial Council estimates that the cost recovery program
could generate $3.3 million to $4.8 million to be used in
reducing attorney caseloads. While this cost recovery would not
bridge the $57.14 million funding shortfall, it would provide
some of the funding needed to reduce caseloads for dependency
counsel.
Support : Family Law Section of the State Bar
Opposition : None Known
HISTORY
Source : Judicial Council
Related Pending Legislation : None Known
Prior Legislation :
AB 1873 (Lieu, 2008) contained a provision that 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 unrelated
reasons.
SB 2160 (Schiff, Chapter 450, Statutes of 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.
Prior Vote :
AB 131 (Evans)
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Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Appropriations Committee (Ayes 14, Noes 3)
Assembly Floor (Ayes 72, Noes 5)
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