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<ns0:AuthorText authorType="LEAD_AUTHOR">Introduced by Assembly Member Blanca Rubio</ns0:AuthorText>
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<ns0:Legislator>
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<ns0:House>ASSEMBLY</ns0:House>
<ns0:Name>Blanca Rubio</ns0:Name>
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<ns0:Title> An act to amend Section 317 of the Welfare and Institutions Code, relating to dependent children. </ns0:Title>
<ns0:RelatingClause>dependent children</ns0:RelatingClause>
<ns0:GeneralSubject>
<ns0:Subject>Dependency proceedings: counsel.</ns0:Subject>
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<html:p>Existing law requires the juvenile court to appoint counsel for a child or nonminor dependent in dependency proceedings if they are not represented by counsel, unless the court determines that there would be no benefit from the appointment of counsel. Existing law authorizes counsel to be a district attorney, public defender, or other member of the State Bar, who satisfies certain conditions. Existing law specifies that a primary responsibility of counsel appointed to represent a child or nonminor dependent is to advocate for the protection, safety, and physical and emotional well-being of the child or nonminor dependent.
Under existing law, counsel in general is charged with representation of the child’s best interests. Existing law requires, when counsel is appointed for a nonminor dependent, counsel to represent the wishes of the nonminor dependent except when advocating for those wishes conflicts with the protection or safety of the nonminor dependent.</html:p>
<html:p>This bill would remove the requirement that a primary responsibility of appointed counsel is to advocate for the protection, safety, and physical and emotional well-being of a nonminor dependent. The bill would also remove the above-described exception to representing the wishes of the nonminor dependent when those wishes conflict with the protection or safety of the nonminor dependent.</html:p>
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<ns0:Bill id="bill">
<ns0:Preamble>The people of the State of California do enact as follows:</ns0:Preamble>
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<ns0:Num>SECTION 1.</ns0:Num>
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Section 317 of the
<ns0:DocName>Welfare and Institutions Code</ns0:DocName>
is amended to read:
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<ns0:Num>317.</ns0:Num>
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<html:p>
(a)
<html:span class="EnSpace"/>
(1)
<html:span class="EnSpace"/>
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.
</html:p>
<html:p>
(2)
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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 court shall appoint counsel for the parent or Indian custodian.
</html:p>
<html:p>
(b)
<html:span class="EnSpace"/>
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.
</html:p>
<html:p>
(c)
<html:span class="EnSpace"/>
(1)
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If a child or nonminor dependent is not represented by counsel, the court shall appoint counsel for the child or nonminor dependent, unless the court finds that the child or nonminor dependent would not benefit from the appointment of counsel. The court shall state on the record its reasons for that finding.
</html:p>
<html:p>
(2)
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A primary responsibility of 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.
</html:p>
<html:p>
(3)
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Counsel may be a district attorney, public defender, or other member of the State Bar, provided that they do not represent another party or county agency whose interests conflict with the child’s or nonminor dependent’s interests. The fact that the district attorney represents the child or nonminor dependent 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.
</html:p>
<html:p>
(4)
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The court may fix the compensation for the services of appointed counsel.
</html:p>
<html:p>
(5)
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(A)
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The appointed counsel shall have a caseload and training that ensures adequate representation of the child or nonminor dependent. 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.
</html:p>
<html:p>
(B)
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The training requirements imposed pursuant to subparagraph (A) shall include instruction on both of the following:
</html:p>
<html:p>
(i)
<html:span class="EnSpace"/>
Cultural competency and sensitivity relating to, and best practices for, providing adequate care to lesbian, gay, bisexual, and transgender youth in out-of-home care.
</html:p>
<html:p>
(ii)
<html:span class="EnSpace"/>
The information described in subdivision (d) of Section 16501.4.
</html:p>
<html:p>
(d)
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Counsel shall represent the parent, guardian, child, or nonminor dependent at the detention hearing and at all subsequent proceedings before the juvenile court. Counsel shall continue to represent the parent, guardian, child, or nonminor dependent 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, unless the parent is receiving court-ordered family reunification services.
</html:p>
<html:p>
(e)
<html:span class="EnSpace"/>
(1)
<html:span class="EnSpace"/>
Counsel shall be charged in general with the representation of the child’s interests. To that end, counsel shall make or cause to have made any further investigations that they deem in good faith to be reasonably necessary to ascertain the facts, including the interviewing of witnesses, and shall examine and cross-examine witnesses in both the adjudicatory and dispositional hearings. Counsel may also introduce and examine their 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. When counsel is appointed to represent a nonminor dependent, counsel is charged with representing the wishes of the nonminor
dependent. If the court finds that a nonminor dependent is not competent to direct counsel, the court shall appoint a guardian ad litem for the nonminor dependent.
</html:p>
<html:p>
(2)
<html:span class="EnSpace"/>
If the child is four years of age or older, counsel shall interview the child to determine the child’s wishes and assess the child’s well-being, and shall advise the court of the child’s wishes. Counsel shall not advocate for the return of the child if, to the best of their knowledge, return of the child conflicts with the protection and safety of the child.
</html:p>
<html:p>
(3)
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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. 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.
</html:p>
<html:p>
(4)
<html:span class="EnSpace"/>
(A)
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At least once every year, if the list of educational liaisons is available on the internet website for the State Department of Education, both of the following shall apply:
</html:p>
<html:p>
(i)
<html:span class="EnSpace"/>
Counsel shall provide their contact information to the educational liaison, as described in subdivision (c) of Section 48853.5 of the Education Code, of each local educational agency serving counsel’s foster child clients in the county of jurisdiction.
</html:p>
<html:p>
(ii)
<html:span class="EnSpace"/>
If counsel is part of a firm or organization representing foster children,
the firm or organization may provide its contact information in lieu of contact information for the individual counsel. The firm or organization may designate a person or persons within the firm or organization to receive communications from educational liaisons.
</html:p>
<html:p>
(B)
<html:span class="EnSpace"/>
The child’s caregiver or other person holding the right to make educational decisions for the child may provide the contact information of the child’s attorney to the child’s local educational agency.
</html:p>
<html:p>
(C)
<html:span class="EnSpace"/>
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.
</html:p>
<html:p>
(5)
<html:span class="EnSpace"/>
Nothing in this subdivision shall be construed to permit counsel to violate a child’s attorney-client privilege.
</html:p>
<html:p>
(6)
<html:span class="EnSpace"/>
The changes made to this subdivision during the 2011–12 Regular Session of the Legislature by the act adding subparagraph (C) of paragraph (4) and paragraph (5) are declaratory of existing law.
</html:p>
<html:p>
(7)
<html:span class="EnSpace"/>
The court shall take whatever appropriate action is necessary to fully protect the interests of the child.
</html:p>
<html:p>
(f)
<html:span class="EnSpace"/>
Either the child or 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 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. 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 consent. For the sole purpose of fulfilling their obligation to provide legal representation of the child, counsel 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 childcare 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 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.
</html:p>
<html:p>
(g)
<html:span class="EnSpace"/>
In a county of the third class, if counsel is to be provided to a child at the county’s expense other than by counsel for the agency, the court shall first use the
services of the public defender before appointing private 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.
</html:p>
<html:p>
(h)
<html:span class="EnSpace"/>
In a county of the third class, if counsel is to be appointed to provide legal counsel for a parent or guardian at the county’s expense, the court shall first use the services of the alternate public defender before appointing private 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.
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