BILL ANALYSIS �
SB 926
Page 1
Date of Hearing: June 14, 2011
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 926 (Runner) - As Amended: April 14, 2011
PROPOSED CONSENT (As Proposed to be Amended)
SENATE VOTE : 40-0
SUBJECT : Placement for Dependent Children: Disclosure
KEY ISSUE : IN ORDER TO HELP ENSURE THE BEST POSSIBLE PLACEMENT
FOR A FOSTER CHILD, SHOULD THE CHILD'S ATTORNEY, WHEN ASSESSING
SOMEONE FOR PLACEMENT, BE ALLOWED TO DISCLOSE THE SAME LIMITED
INFORMATION TO THAT POTENTIAL PLACEMENT THAT A SOCIAL WORKER CAN
TODAY?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
Under current law, when a child is removed from the custody of
his or her parents due to abuse or neglect, placement preference
is given to a relative of the child. Current law requires the
court to authorize the county social worker, in assessing the
possible placement, to disclose limited case information to the
relative. This bill permits the attorney for the child to
disclose the same limited case information when assessing an
individual for the possibility of placement, provided the
disclosed information does not violate the child's
attorney-client privilege. While children's dependency counsel
in some counties have been able to disclose this information,
counsel in other counties have not.
The author believes that counsel for a child should be able to
fully and independently investigate a proposed placement's
knowledge base about the child, the parent and the allegations.
The author writes that it is important in the course of the
mandated independent investigation by the child's counsel that
the proposed caretaker be presented with the 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 well-being of
the child, as well as set any needed boundaries with the parent,
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and facilitate the court ordered plan for the child. The bill
is supported by child advocates, law enforcement groups, and the
Family Law Section of the State Bar.
SUMMARY : Allows an attorney for a dependent child to disclose
limited case information to an individual being assessed for
possible placement of the child. Specifically, this bill :
1) Allows, but does not require, the child's attorney, and
the attorney's agent, to disclose to an individual being
considered for placement of the child: (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. Does not
alter the attorney's duties and responsibilities regarding the
child's attorney-client privilege.
2) States that #1 is declarative of existing law.
EXISTING LAW :
1)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. 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. 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. (Welfare & Institutions Code Section 317. Unless
stated otherwise, all further references are to that code.)
2)Requires that, when a child is removed from his or her parents
and placed in foster care, the child's social worker must,
within 30 days, conduct an investigation to identify and
locate the child's adult relatives, as defined. Requires the
social worker, for all located relatives, to provide, within
30 days of removal, notification that the child has been
removed from his or her parents and the various options
available to participate in the care and placement of the
child and support of the child's family. (Section 309.)
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3)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 that
relative. 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.
(Section 361.3(a).)
4)Provides for the court to authorize a county social worker,
while assessing a relative 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. (Section 361.3(a)(8).)
5)Provides that the attorney for the child is authorized to
inspect the child's case file. (Section 827.)
COMMENTS : When a child is removed from the 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. Relatives are given
preference under existing law in an effort to aid in the
reunification process between the child and his or her parents.
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 will be returned to his or her parents.
This bill allows the attorney who is representing the child to
disclose the same limited case information to the individual who
is being assessed for the possibility of placement of the child,
provided the disclosure does not violate the child's
attorney-client privilege.
In support of the bill, the author writes:
It is important that the attorney appointed to represent a
child in dependency court is able to fully assess whether a
potential placement would serve the best interests of the
child.
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Because state law is absent regarding this issue, some
municipalities have allowed limited disclosure. Since
local laws and rules cannot circumvent state law, it only
makes sense to allow disclosure of limited case information
statewide in order to better assess potential placements of
children in every county. . . .
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.
Moreover, 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.
This Bill Authorizes the Attorney for a Foster Child to Disclose
Limited Case Information When Assessing an Individual for
Placement of the Child : Under current 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 permits the attorney for the child, while in
the course of the attorney's statutorily authorized independent
investigation, to disclose this limited case related information
to those seeking temporary or permanent custody of the child.
In almost all cases, the dependency court will appoint an
attorney to represent a child removed from the physical custody
of his or her parents. The attorney is responsible for the
protection, safety, physical and emotional well-being of the
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child. The attorney is not explicitly permitted by existing law
to reveal case information to someone being assessed for
placement. The Family Law Section of the State Bar 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 appears to flow naturally 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 placement is appropriate as
well as to advocate for the child, the attorney's hands should
not be tied when communicating with individuals requesting
placement 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.
This Bill Specifically Protects the Attorney-Client Privilege :
Because this bill permits an attorney to disclose case
information, this bill could potentially raise 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.)
However, as proposed to be amended, this bill specifically
provides that it does not alter the attorney's duties and
responsibilities regarding the child's attorney-client
privilege. This should not be a constraint on the attorney
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since the disclosure permitted by this bill should not originate
from communications between the attorney and the child, but
rather from the surrounding facts regarding why the child is in
custody, and thus will not fall within privileged
communications.
Author's Amendments : In order to ensure that the bill provides
appropriate discretion to the child's attorney, the author
proposes to move the changes in the bill to the Welfare and
Institutions section that addresses the duty of the child's
attorney to independently investigate for the child.
Additionally, the amendments clarify that the attorney's
disclosure is limited by the attorney-client privilege. While
attorney disclosure and investigatory provisions are subject to
the attorney-client privilege unless explicitly stated
otherwise, the clear statement in this bill ensures that the any
disclosures are limited by that privilege.
The proposed amendments delete the current contents of the bill
and make the following changes to Welfare and Institutions Code
Section 317(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 for
the child, and the attorney's agent, may but is not required to
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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 for the custody,
and the projected likely date for the child's return home or
placement for adoption or legal guardianship; however this does
not prevent the attorney from making other disclosures pursuant
to this subdivision, as appropriate. This subdivision does not
alter the attorney's duties and responsibilities regarding the
child's attorney-client privilege. 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. The amendments made to this subdivision
in 2011 do not constitute a change in, but are declaratory of,
existing law.
ARGUMENTS IN SUPPORT : In support of the bill, the Children's
Advocacy Institute writes: "SB 926 will allow a foster child's
law firm to independently investigate whether the proposed
caretaker of a child fully understands the reasons for a child's
removal from his or her parents. This enables the proposed
caretaker to fully comprehend the seriousness of the child's
circumstances and develop a plan to ensure the protection and
well-being of the child. This also allows the child's chief
advocate, his or her attorney, to assess the appropriateness of
a particular placement for a child." The Children's Advocacy
Institute supports the bill "because it provides one more tool
to help ensure appropriate and nurturing placements for all
children who are under the care of the State."
Adds Aspiranet, one of the state's largest foster care
providers: "We consider it best that a child stay with
relatives whenever possible, depending on the circumstances
regarding abuse and neglect. County social workers often have
many cases, and oversee many children. SB 926 will allow these
social workers to get more, sometimes necessary, help from the
child's attorney in seeking out possible placement with
relatives, who may or may not live within that county's
jurisdiction. We value any extra help, and voices, a child can
get in an already difficult process."
The Family Law Section of the State Bar writes: "This bill
clarifies what the state law is and, in the process, ensures
uniformity in family law rules and practice throughout this
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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."
REGISTERED SUPPORT / OPPOSITION :
Support
Aspiranet
California Probation Parole and Correctional Association (in
concept)
Chief Probation Officers of California
Children's Advocacy Institute
Family Law Section of the State Bar
Sacramento Child Advocates
Opposition
None on file
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334