BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 926 (Runner)
As Amended April 14, 2011
Hearing Date: April 26, 2011
Fiscal: No
Urgency: No
EDO
SUBJECT
Dependent Children: Relative Placements: Disclosure
DESCRIPTION
Existing law requires that when a child is removed from the
physical custody of his or her parents due to abuse or neglect,
preference be given to a request by a relative of the child for
placement with the relative. Existing law requires the court to
authorize the county social worker, in assessing relatives for
the possibility of placement, to disclose limited case
information. This bill would additionally authorize the court to
allow an attorney for the child to disclose limited case
information to the relative when assessing the relative for the
possibility of placement.
BACKGROUND
When a child is removed from the physical custody of his or her
parents due to abuse or neglect, the child is taken into the
temporary custody of the county. A social worker is tasked with
identifying and locating all adult relatives within 30 days of
the child being removed from the parent's custody and assessing
potential relatives for placement. During the investigation,
the social worker is authorized by the court to disclose certain
facts to relatives requesting custody of the child relating to
why the child is in custody and when or if the child would be
returned to his or her parents.
At the initial petition hearing, the social worker reports to
the court the reasons why the child was removed and if further
detention is required. If the court finds it appropriate, an
(more)
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attorney may be appointed to represent the child during the
court proceedings. The court considers several factors when
determining whether or not the child should be returned to the
parent's custody. If the child is not returning to the custody
of his or her parents then preference is given to adult
relatives of the child for placement. Relatives are given
preference under existing law in an effort to aid in the
reunification process between the child and his or her parents.
This bill would allow the attorney who is representing the child
to disclose limited case information to relatives who are being
assessed for the possibility of placement of the child with that
relative.
CHANGES TO EXISTING LAW
Existing law provides that when a child is removed from the
physical custody of his or her parents, preference be given to a
request by a relative of the child for placement with the
relative. (Welf. & Inst. Code Sec. 361.3(a).)
Existing law provides that the county social worker should
consider several factors when determining placement of the
child, including the best interest of the child and the wishes
of the parent, the relative, and child, if appropriate. (Welf.
& Inst. Code Sec. 361.3(a)(1)-(8).)
Existing law provides for the court to authorize a county social
worker while assessing relatives for the possibility of
placement to disclose to the relative, (1) the fact that the
child is in custody, (2) the alleged reasons for the custody,
and (3) the projected likely date for the child's return home or
placement for adoption or legal guardianship. (Welf. & Inst.
Code Sec. 361.3(a)(8).)
Existing law provides that the court shall appoint counsel for a
child removed from his or her parent's custody unless the court
determines that the child would not benefit from appointment of
counsel. (Welf. & Inst. Code Sec. 317(c).)
Existing law provides that if an attorney is appointed to
represent the child, the primary responsibility of the attorney
is to advocate for the protection, safety, and physical and
emotional well-being of the child. (Welf. & Inst. Code Sec.
317(c).)
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Existing law provides that the attorney for the child is charged
with representation of the child's interest and in order to
protect the child's interest, shall conduct further
investigations as he or she deems necessary and if necessary
beyond the scope of the proceeding. (Welf. & Inst. Code Sec.
317(e).)
Existing law provides that the attorney for the child is
authorized to inspect the child's case file. (Welf. & Inst. Code
Sec. 827.)
Existing law provides that a privilege exists between a client
and his or her attorney and the client and the attorney are both
holders of the privilege. This means that both the client and
the attorney may refuse to disclose and may prevent others from
disclosing confidential communications between the client and
his or her attorney. (Evid. Code Sec. 954.)
This bill would authorize the court to allow, in addition to the
county social worker, the child's attorney to disclose to the
relative, (1) the fact that the child is in custody, (2) the
alleged reasons for the custody, and (3) the projected likely
date for the child's return home or placement for adoption or
legal guardianship.
COMMENT
1. Stated need for the bill
The author writes:
Currently, different counties and different courts operate
under a system of local rules and standing court orders to
ensure that the parties appearing in dependency proceedings
are fully and effectively represented. While local rules and
standing orders often permit attorneys and their agents to
disclose limited case information to interested non-parties
seeking placement of the subject child or a role in their
life, such rules and orders while well intentioned, remain of
questionable validity given the premise that rules cannot be
inconsistent with the law.
Counsel for a child must be able to fully and independently
from the county, investigate a proposed relative or
non-related extended family member's knowledge base about the
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child, the parent and the allegations. If the proposed
caretaker purports to not know why a child was removed or is
in need of care, or indicates a faulty understanding of the
basis for removal and the issues facing the parent and family,
it is important in the course of this mandated independent
investigation by the child's law firm, that the proposed
caretaker be presented with the alleged facts of the case,
that they grapple with the gravity of the situation and
develop a plan of how they will ensure the protection and
wellbeing of the child, as well as set any needed boundaries
with the parent, and facilitate the court ordered plan for the
child.
In support of the bill, the Executive Committee of the Family
Law Section of the State Bar (FLEXCOM) writes "although it is
not explicitly stated, current law appears to prohibit legal
counsel and their agents from disclosing confidential case
related information in the course of assessing relatives and
non-related extended family members for possible placement or
other involvement in the life of the child . . . this bill
clarifies what the state law is and, in the process, ensures
uniformity in family law rules and practice throughout this
state. It also ensures that everyone is following the better
reasoned interpretation of the existing law, which, in turn,
allows for dependent children to have better representation."
2. Authorizing attorneys to disclose limited case information to
a relative when assessing that relative for placement of the
child
Under existing law, the county social worker is authorized by
the court to disclose limited case information to relatives when
assessing them for placement of a child removed from the custody
of his or her parents. The social worker may tell the relatives
that the child is in custody, the alleged reasons for why the
child is in custody and when, or if, the child is expected to
return to the parent's custody. This bill would also authorize
the court to allow the attorney for the child to disclose this
limited case related information to relatives seeking temporary
or permanent custody of the child, while in the course of the
attorney's statutorily authorized independent investigation.
In the majority of cases, the court will appoint an attorney to
represent a child removed from the physical custody of his or
her parents. Existing law states that the attorney is
responsible for the protection, safety, physical and emotional
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well-being of the child. Under existing law, the attorney is
not explicitly permitted to reveal case information to relatives
when the relative is being assessed for placement. FLEXCOM
notes "because state law is unclear on this issue, some counties
have specifically allowed attorneys to make limited disclosure.
As a matter of practice, some attorneys representing children
make these types of disclosures, whether or not specifically
authorized by local rules." The lack of clarity stems from the
fact that, although the statute does not specifically authorize
the attorney to make these disclosures, the attorney is
nevertheless authorized to conduct his or her own independent
investigation as deemed necessary beyond the scope of the
proceeding.
Although the statute is silent on whether or not an attorney may
reveal this information, it would seem to naturally flow from
the responsibility delegated to the attorney in advocating for
the child's protection, safety and well-being to be able to
discuss the reasons for custody with potential relative
placements. In order to fully assess whether the relative
placement is appropriate as well as to advocate for the child,
the attorney's hands should not be tied when communicating with
possible relatives requesting custody of the child.
Further, since it is the general statutory responsibility of the
attorney to represent the child's best interest, being able to
disclose limited case related information would help the
attorney carry out his or her duties under the statute.
3. Attorney-client privilege
Because this bill would permit an attorney to disclose case
information to a relative, this bill potentially raises the
issue of whether that disclosure is a violation of the
attorney-client privilege. Under existing law, a client may
refuse to allow his or her attorney to disclose confidential
communications between the client and attorney. The purpose of
the attorney-client privilege "is to enhance the value which
society places on legal representation by assuring the client
full disclosure to the attorney unfettered by fear that others
will be informed." (Sacramento Newspaper Guild, etc. v.
Sacramento County Board of Supervisors (1968) 263 Cal.App.2d
41.) Since the communication proposed to be disclosed by this
bill would not likely originate between the attorney and the
child, but rather from the surrounding facts gathered regarding
why the child is in custody, it does not appear to fall within
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the privileged communications. Due to the origin of the
information and the limited disclosure, there should not be a
conflict with this doctrine.
The author and sponsor note that "if an attorney representing a
child victim of abuse and neglect cannot reveal limited
information about the nature of the allegations, especially in
cases where the relative indicates either no knowledge of why
the child has been removed or has an inaccurate understanding of
the allegations, then they cannot fully assess the proposed
placement." Further, as noted by the author and sponsor, "at
times relatives and proposed non-related extended family members
will share with the child's attorney that the county did not
explain the nature of the allegations and the reasons the child
has been detained from a parent. Whether this is true or not,
it is important for the child's attorney to fully investigate
the knowledge base of the relative and their willingness to
accept the facts that the court finds to be true, often painful
facts that describe the relative's own child may raise difficult
loyalty issues."
Support : California Probation Parole and Correctional
Association (In Concept); Chief Probation Officers of
California; Children's Advocacy Institute; The Executive
Committee of the Family Law Section of the California State Bar
Opposition : None Known
HISTORY
Source : Sacramento Child Advocates, Inc.
Related Pending Legislation : SB 927 (Runner) would authorize an
attorney for a party in a juvenile dependency proceeding
involving a sibling of the minor to inspect the case file. This
bill has been referred to the Senate Committee on Public Safety
and the Senate Committee on Judiciary.
Prior Legislation : None Known
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