BILL NUMBER: SB 926	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  JUNE 21, 2011
	AMENDED IN SENATE  APRIL 14, 2011

INTRODUCED BY   Senator Runner

                        FEBRUARY 18, 2011

   An act to amend Section  361.3   317  of
the Welfare and Institutions Code, relating to dependent children.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 926, as amended, Runner. Dependent children: relative
placements: disclosure.
   Existing law  requires a court to appoint counsel for a child
who is not represented by counsel in dependency proceedings, except
as specified. Counsel for the child is required to 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 in other administrative or judicial proceedings.
Existing law  requires that in any case in which a child is
removed from the physical custody of his or her parents due to abuse
or neglect, preferential consideration be given to a request by a
relative of the child for placement of the child with the relative.
 Existing law requires the court to authorize the county
social worker, in assessing a relative for the possibility of
placement, to disclose to the relative, as appropriate, the fact that
the child is in custody, the alleged reasons for the custody, and
the projected likely date for the child's return home or placement
for adoption or legal guardianship.  
   This bill would expand those provisions to additionally require
the court to authorize an attorney for the child, or the attorney's
agent, to make those disclosures to the relative who is being
assessed for the possibility of placement.  
   This bill would authorize counsel for the child or counsel's agent
to disclose to a relative who is being assessed for the possibility
of placement of the child the fact that the child is in custody and
other related information, as specified.  
    The bill would state that the changes made by this measure are
declaratory of existing law, and would also make technical,
nonsubstantive changes to those provisions. 
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

   SECTION 1.    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  federal
 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   he or she  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  
Counsel  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. On and after January 1, 2012,
in the case of a nonminor dependent, as described in subdivision (v)
of Section 11400, no representation by counsel shall be provided for
a parent.
   (e)  The counsel for the child   (1) 
   Counsel  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   Counsel  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 
    (2)     If  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  of the child  conflicts with the
protection and safety of the child.  In addition counsel

    (3)     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
  Counsel  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  
   (4) Counsel for the child and counsel's agent may, but are not
required to, disclose to an individual who is being assessed for the
possibility of placement pursuant to Section 361.3 the fact that the
child is in custody, the alleged reasons that the child is in
custody, and the projected likely date for the child's return home,
placement for adoption, or legal guardianship. Nothing in this
paragraph shall be construed to prohibit counsel from making other
disclosures pursuant to this subdivision, as appropriate.  
   (5) Nothing in this subdivision shall be construed to permit
counsel to violate a child's attorney-client privilege.  
   (6) The changes made to this subdivision during the 2011-12
Regular Session of the Legislature by the act adding paragraphs (4)
and (5) are declaratory of existing law. 
    (7)     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
  . 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  the  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
  that  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   the county's 
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
 to provide legal counsel  for a parent or guardian at
 county   the county's  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. 
  SECTION 1.    Section 361.3 of the Welfare and
Institutions Code is amended to read:
   361.3.  (a) In any case in which a child is removed from the
physical custody of his or her parents pursuant to Section 361,
preferential consideration shall be given to a request by a relative
of the child for placement of the child with the relative. In
determining whether placement with a relative is appropriate, the
county social worker and court shall consider, but shall not be
limited to, consideration of all the following factors:
   (1) The best interest of the child, including special physical,
psychological, educational, medical, or emotional needs.
   (2) The wishes of the parent, the relative, and child, if
appropriate.
   (3) The provisions of Part 6 (commencing with Section 7950) of
Division 12 of the Family Code regarding relative placement.
   (4) Placement of siblings and half siblings in the same home, if
that placement is found to be in the best interest of each of the
children as provided in Section 16002.
   (5) The good moral character of the relative and any other adult
living in the home, including whether any individual residing in the
home has a prior history of violent criminal acts or has been
responsible for acts of child abuse or neglect.
   (6) The nature and duration of the relationship between the child
and the relative, and the relative's desire to care for, and to
provide legal permanency for, the child if reunification is
unsuccessful.
   (7) The ability of the relative to do the following:
   (A) Provide a safe, secure, and stable environment for the child.
   (B) Exercise proper and effective care and control of the child.
   (C) Provide a home and the necessities of life for the child.
   (D) Protect the child from his or her parents.
   (E) Facilitate court-ordered reunification efforts with the
parents.
   (F) Facilitate visitation with the child's other relatives.
   (G) Facilitate implementation of all elements of the case plan.
   (H) Provide legal permanence for the child if reunification fails.

   However, any finding made with respect to the factor considered
pursuant to this subparagraph and pursuant to subparagraph (G) shall
not be the sole basis for precluding preferential placement with a
relative.
   (I) Arrange for appropriate and safe child care, as necessary.
   (8) The safety of the relative's home. For a relative to be
considered appropriate to receive placement of a child under this
section, the relative's home shall first be approved pursuant to the
process and standards described in subdivision (d) of Section 309.
   In this regard, the Legislature declares that a physical
disability, such as blindness or deafness, is no bar to the raising
of children, and a county social worker's determination as to the
ability of a disabled relative to exercise care and control should
center upon whether the relative's disability prevents him or her
from exercising care and control. The court shall order the parent to
disclose to the county social worker the names, residences, and any
other known identifying information of any maternal or paternal
relatives of the child. This inquiry shall not be construed, however,
to guarantee that the child will be placed with any person so
identified. The county social worker shall initially contact the
relatives given preferential consideration for placement to determine
if they desire the child to be placed with them. Those desiring
placement shall be assessed according to the factors enumerated in
this subdivision. The county social worker shall document these
efforts in the social study prepared pursuant to Section 358.1. The
court shall authorize the county social worker, while assessing these
relatives for the possibility of placement, to disclose to the
relative, as appropriate, the fact that the child is in custody, the
alleged reasons for the custody, and the projected likely date for
the child's return home or placement for adoption or legal
guardianship. However, this investigation shall not be construed as
good cause for continuance of the dispositional hearing conducted
pursuant to Section 358. The court shall also authorize the attorney
for the child appointed pursuant to subdivision (c) of Section 317,
and the attorney's agent, to disclose information to the relative who
is being assessed for the possibility of placement, as appropriate,
the fact that the child is in custody, the alleged reasons for the
custody, and the projected likely date for the child's return home or
placement for adoption or legal guardianship.
   (b) In any case in which more than one appropriate relative
requests preferential consideration pursuant to this section, each
relative shall be considered under the factors enumerated in
subdivision (a).
   (c) For purposes of this section:
   (1) "Preferential consideration" means that the relative seeking
placement shall be the first placement to be considered and
investigated.
   (2) "Relative" means an adult who is related to the child by
blood, adoption, or affinity within the fifth degree of kinship,
including stepparents, stepsiblings, and all relatives whose status
is preceded by the words "great," "great-great" or "grand" or the
spouse of any of these persons even if the marriage was terminated by
death or dissolution. However, only the following relatives shall be
given preferential consideration for the placement of the child: an
adult who is a grandparent, aunt, uncle, or sibling.
   (d) Subsequent to the hearing conducted pursuant to Section 358,
whenever a new placement of the child must be made, consideration for
placement shall again be given as described in this section to
relatives who have not been found to be unsuitable and who will
fulfill the child's reunification or permanent plan requirements. In
addition to the factors described in subdivision (a), the county
social worker shall consider whether the relative has established and
maintained a relationship with the child.
   (e) If the court does not place the child with a relative who has
been considered for placement pursuant to this section, the court
shall state for the record the reasons placement with that relative
was denied.
   (f) (1) With respect to a child who satisfies the criteria set
forth in paragraph (2), the department and any licensed adoption
agency may search for a relative and furnish identifying information
relating to the child to that relative if it is believed the child's
welfare will be promoted thereby.
   (2) Paragraph (1) shall apply if both of the following conditions
are satisfied:
   (A) The child was previously a dependent of the court.
   (B) The child was previously adopted and the adoption has been
disrupted, set aside pursuant to Section 9100 or 9102 of the Family
Code, or the child has been released into the custody of the
department or a licensed adoption agency by the adoptive parent or
parents.
   (3) As used in this subdivision, "relative" includes a member of
the child's birth family and nonrelated extended family members,
regardless of whether the parental rights were terminated, provided
that both of the following are true:
   (A) No appropriate potential caretaker is known to exist from the
child's adoptive family, including nonrelated extended family members
of the adoptive family.
   (B) The child was not the subject of a voluntary relinquishment by
the birth parents pursuant to Section 8700 of the Family Code or
Section 1255.7 of the Health and Safety Code.